By: Seerat Gill
INTRODUCTION
The Orissa High Court (hereinafter “The Court”) in a recent decision in the matter of Sanu Munda v. State of Odisha, set aside the conviction of an accused in a rape case by concluding that the act between the victim and the accused was consensual. To arrive at this conclusion, the Court, besides other aspects, considered the fact that the victim did not provide sufficient resistance, as was evident from the lack of injuries. This assessment was primarily based on two factors: first, the fact that the victim was a grown-up and a married woman and second, the fact that she was accustomed to sexual intercourse. Thus, the Court observed that “Being a married lady and accustomed to sexual intercourse, if the act was without her consent, she could have protested or resisted and in that event, not only there would have been some injuries on the body of the appellant, but also on her own body as well, since it was alleged to be a forcible intercourse (p. 15).”
In the instant case, the accused was the brother-in-law of the victim and was charged under Section 376(2)(f) of the Indian Penal Code which provides the punishment for rape committed by a relative, guardian, teacher or person in a position of trust or authority. The only precedent that was relied upon by the Court for this reasoning was the Supreme Court’s decision of 1977 in Pratap Misra v State of Orissa. In this case, the Court had noted that it is difficult to single-handedly rape a grown-up woman with experience without the stiffest resistance on her behalf.
However, can marital status and sexual experience be sound parameters while examining a victim’s level of resistance to rape? In this piece, I answer the same in the negative by offering a critique of the Orissa High Court’s reasoning for three reasons. First, it fails to take into account the Supreme Court’s prevailing jurisprudence which successfully debunks the existing rape myths. Second, the Court’s reasoning amounts to judicial stereotyping which is proscribed by the Supreme Court vide its judgment in the matter of Aparna Bhat v. State of Madhya Pradesh. Third, it puts additional pressure on the performance on victims and fails to take into account subjective reactions to an incident. I shall now address each of these reasons individually.
THE DISSONANCE BETWEEN THE COURT’S JUDGEMENT AND THE SUPREME COURT’S PREVAILING JURISPRUDENCE
This reasoning used by the Orissa High Court is based on the symbiosis of two rape myths. First, the expectation that women who are sexually experienced ought to have acted differently to prove that they did not consent or that women with sexual experience cannot be raped. Second, that presence of injuries proves resistance by the victim and therefore, lack of injuries denotes the absence of any form of protest by the victim. Implicit in the opinion is further the assumption that every woman who is married is sexually active and is capable of protesting with violence.
However, the Court failed to take notice of the Supreme Court’s precedents wherein concerted efforts have been made to debunk these myths. In State of Uttar Pradesh v. Munshi, the Supreme Court observed that even if one assumes that the victim was previously accustomed to sexual intercourse, this is not the determinative question rather the question that ought to be asked is whether rape was committed by the accused on the occasion as alleged in the complaint. The Apex Court reiterated this point of law in Narender Kumar v. State (NCT Delhi) by observing that merely because a woman is of easy virtue, her evidence cannot be discarded on this ground alone. In 2022, the Supreme Court in State of Jharkhand v. Shailendra Kumar Rai @Pandav Rai noted that a woman being habituated to sexual intercourse is immaterial in determining the ingredients of theoffence of rape. Similarly, the presence of injuries as proof of resistance is not an inflexible rule in rape cases and has to be adjudged according to the facts of each case, as observed in Dastagir Sab and Anr. v. State of Karnataka.
JUDICIAL STEREOTYPING AND FAILURE TO COMPLY WITH SUPREME COURT’S ORDER
Second, the reasoning opted by the Court amounts to judicial stereotyping which has been defined by the Court in Aparna Bhat v. State of Madhya Pradesh as “the practice of judges ascribing to an individual’s specific attributes, characteristics or roles by reason only of his or her membership of a particular social group.” In the instant case, the Court stereotyped women not only on the basis of certain rape myths as highlighted above but also on the basis of one’s marital status.
Though the Apex Court was primarily concerned with bail orders in this case, the Court also proscribed courts from expressing any stereotypical opinion verbally or in judicial orders. The illustrations of such stereotypical orders which are relevant to the instant case include opinions on the fact that the testimonial evidence provided by women who are sexually active is suspicious while determining consent and that lack of injury implies consent by women.
ADDITIONAL BURDEN OF PERFORMANCE AND FAILURE TO ACCOMMODATE SUBJECTIVE REACTIONS
Such reasoning also puts an additional burden of performance on rape victims and essentially contributes to an ideal sexual assault victim image. The trustworthiness of a victim’s account is determined to an extent by her conduct while rape is being committed. Thus, a married woman with sexual experience has to protest to the extent that leaves certain visible and gruesome injuries to prove and convince the Court that she resisted the act.
The only exception to this rule according to the Supreme Court in Pratap Misra’s case, was when the woman was under the influence of drinks or drugs or was asleep or unwell. On the other hand, the Orissa High Court carved out a broader exception to this rule by observing that in cases where volitional activity is clouded due to fear or duress, which results in helpless resignation, there is no consent in the eyes of law.
However, these exceptions are not comprehensive to cover all such circumstances where there might be no consent. For instance, the ‘freeze response’ and tonic immobility are well documented as causes for the lack of any reaction at all. While it may be argued that a freeze response is also a result of fear, studies have also shown a cause-effect relationship between human stress and freeze response.
Therefore, judicial reasoning which is based on sweeping generalisations and which fails to take into account factors that determine a victim’s response during rape is unsound and dangerous. Numerous empirical studies prove that different situational factors determine the level of the victim’s resistance while rape is being committed. For instance, Chopin Et. Al. (2022), conducted research using 2,017 rape cases as sample to conclude that three factors determine victim resistance in rape cases. These are: the victim’s physical and psychological vulnerabilities, the mentalising of victimisation risk, and the analysis of the offender’s vulnerabilities and the additional risks to the victim. Similarly, Balemba Et. Al., (2019) in a research based on 613 samples concluded that some factors which determine victim resistance include indicators of offender mindset, the victim’s age and the degree of violence.
Thus, even if a woman is married and is accustomed to sexual intercourse, her reaction is likely to be affected by several other factors as well.
A NOTE OF CAUTION: SPECIFIC RAPE MYTHS AND THE NEED FOR AN INTERSECTIONAL ANALYSIS IN RAPE JURISPRUDENCE
At last, this reasoning also brings another important issue to the forefront. It denotes the presence of rape myths that are specific to a group of women. In other words, multiplicity of identities can expose a woman to specific rape myths. The intersection of sex as an identity with identities based on caste, class, religion and sexual orientation amongst others can doubly or triply marginalise a woman. The Supreme Court in Aparna Bhat’s case recognised systemic violence against women and noted that besides sex, women are also discriminated against based on caste, class, ability and sexual orientation. Similarly, the Bangkok Guidance for Judges relied upon by the Court in this case forewarned the judges against intersectional forms of discrimination. However, marriage was not expressly recognised as a source of intersectional discrimination in any of these authorities.
The same calls for an intersectional analysis in rape jurisprudence in India as intra-gender hierarchies also substantially affect the experience of a rape victim.
CONCLUSION
Therefore, it is imperative for the Apex Court to overrule the judgment in Pratap Misra’s case in order to set a better precedent for the lower judiciary and ensure coherence in the existing jurisprudence concerning victim protection and dignity in rape cases. Second, there is a need for sensitisation of the judiciary as well as the public at large to be able to acknowledge rape myths that target women based on their multiple identities.
Ultimately, generalisations and conjectures should have no place in a criminal justice system that espouses the cause of dignity for the victim and aims to prevent gender-based otherisation.
( Seerat Gill is a law undergraduate at Rajiv Gandhi National University of Law, Punjab. The author may be contact via mail at seeratgill253@gmail.com )
Cite as: Seerat Gill, Orissa High Court on resistance in Rape Cases: A case of dangerous reliance on Rape Myths, 1 November 2023, <https://rmlnlulawreview.com/2023/11/01/orrisa-high-court-on-resistance-in-rape-cases-a-case-of-dangerous-reliance-on-rape-myths/> date of access.
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