“The search for the ideal rape victim by the Indian courts continues to give injustice”, says senior supreme court advocate and feminist Vrinda Grover. In a conversation with TNM’s Dhanya Rajendran, Vrinda shares her thoughts on the judgement in the Bishop Franco rape case, which acquits the clergyman of the charges of raping a nun in the Missionaries of Jesus convent 13 times.
Vrinda says that the judgment “is extremely flawed on legal grounds”. “It does not take into cognizance the amendments made in 2013. It uses legal principles to appreciate evidence (survivor’s account) in a very, very strange manner, and it also discards evidence,” she says. Pointing to an example, she says that the way the judgement has interpreted and used language is flawed.
The survivor nun had shared with the prosecution witnesses that she “will be forced to sleep with the Bishop”. The judgement however, interprets this in the literal sense, and mentions that the nun had literally referred to sexual assault. “Very few women actually ever use the term ‘rape’ because that in fact that would be artificial in a sense; or he says she's not spoken about penile penetration, whereas she's talking about him inserting his finger into her vagina or putting his penis into her mouth,” Vrinda explains, adding that she has seen many survivors of rape never actually referring to the act direclty.
“So law and courts need to learn from the lived experience of women rather than constantly asking women to to that their evidence, if it does not conform to traditional stereotypes, if it does not conform to rape myths, then her evidence is discarded and she's not speaking the truth,” Vrinda adds.
Vrinda also says that the court found Bishop Franco to be in a position of authority, but makes no mention of it.
“Having come to a finding that the accused is in a position of trust and authority, the court then becomes almost oblivious to the same finding when it comes to how this authority then plays itself out in life. How does it operationalize? How does the bishop actually use that power? That I don't see any anywhere reflected in the judgement,” she says.
She also points out that the judgement uses false evidence (letter by the cousin alleging that the survivor was having an affair with the cousin’s husband) to create ‘prejudice in our minds’. The law bars courts from looking at the past sexual experience or sexual history of the survivor. But here “we are then taken into her fabricated past sexual history and through that her character is assassinated and her body is put on display by giving details which have no factual basis,” Vrinda adds.
Lastly, Vrinda adds that women shouting and screaming and coming out with sexual assault allegation at the first instance only happens in fiction. “Women are socialised to accept violence and if they make this public, the shame is on them,” she says. So when the court searches for the ‘ideal rape victim’, it actually undermines and undercuts any progress made in legal reform. “This is not the first case, unfortunately, it may not be the last. The Tarun Tejpal case and the Mahmood Farooqui case come to mind. In each case, the woman is expected to perform in a certain way and as I mentioned earlier, where are these ideas and imagination coming in the mind of the court? These are the judicial stereotypes. These are the rape myths that the courts perpetuate, and women are expected behave in this manner,” Vrinda adds. She says that the need of the hour is “judicial orientation to comprehend this crime with all its complexities, and failure to do so is going to lead to grave injustice”.
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