'Why didn't she file a complaint?': A survivor not going to cops doesn't mean she's lying

When it comes to sexual violence, the journey to justice is in itself a punishment for the survivor and/or her family.
Woman standing before court with her back to the camera
Woman standing before court with her back to the camera
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The allegations of sexual abuse against teachers in prominent Chennai schools have shaken up Tamil Nadu. If these accounts are true, we are not speaking of one or two incidents, but a pattern of predatory behaviour that has been ignored and even encouraged for decades. It's important to understand how and why it was possible for the dam to burst now. It happened because in the past few years, survivors have increasingly turned to social media to speak of the sexual violence that they were subjected to. And a growing culture where they receive acknowledgement for what had happened. The #MeToo movement.

This method of outing predators on social media, where the survivor can choose to be anonymous, has more than its fair share of critics. 'Why can't she just go to court?' or 'Why didn't she go to the police', is the sentiment that many of them express, wringing their hands over the reputations and careers of men who have been named. It would appear that obtaining justice in a sexual violence case in India is as simple as going to the supermarket and picking it off the shelf.

When we talk of sexual violence, there is a wide spectrum under the law. The act can range from eve-teasing (the archaic term implying 'mischief' rather than violence still finds a place in the law) to gangrape. While any criminal would avoid having a witness to his crimes if he can help it, it is especially so in the context of sexual violence where the incident seldom has eyewitnesses. Just the testimony of the survivor is not enough to procure a conviction. Though in our cinema, scenes with sexual violence are often depicted in extreme brutality, causing the victim severe injuries, not all incidents of sexual violence leave behind medical/forensic evidence. And even when they do, it has to be established beyond doubt that the act happened without the consent of the victim/survivor.  

Rape is often assumed to be the worst form of sexual violence. In India, an average of 88 rape cases are reported every day, making up 10% of crimes against women. However, the conviction rate for rape in India is only 27.2%. This does not mean that 72.8% of the survivors who reported the crime lied about it. It only means that the evidence did not establish guilt beyond doubt for the court to convict the accused. To be absolutely clear, an acquittal does not make the complainant a liar or a criminal.

When it comes to sexual violence, the journey to justice is in itself a punishment for the survivor and/or her family. No other crime requires the identity of the complainant to be masked. But when it comes to sexual violence, it becomes imperative for the survivor to be called by a pseudonym, her face blurred and her identity concealed even as her trauma is splashed across newspapers and magazines everywhere. This happens because of society's attitude towards sexual violence, attributing the shame of the crime to the victim rather than the perpetrator. We know these women as a Suryanelli, a Nirbhaya, a Disha - recalled whenever another horrific case hits the headlines but forgotten otherwise, their faces never imprinted in our minds. 

Let us not forget that the law itself leans towards victim blaming. It was only in 2013 that the Justice Verma report asked for the humiliating 'two-finger test' to be scrapped. This test, involving a doctor inserting two fingers into the complainant's vagina, was to find out whether she was sexually active or not. The assumption of the law was that a woman who is sexually active cannot be trusted when she cries rape. 

Indeed, in the infamous Mathura case, where a teenaged tribal girl was raped in custody by two policemen, the two finger test was among the 'evidence' considered by the Supreme Court to decide that she was lying and set the men free. Even now, the patriarchal language used by the law, such as 'outraging a woman's modesty', is centered around victim blaming narratives that require a complainant to first establish her 'character' before she can speak up about sexual violence. 

The survivor has to pursue the case for years, make time for hearings, pay legal fees, and relive the trauma of the crime repeatedly. She has to face the risk of having her personal life laid out in the court and the media, with sensitive information leaked by the police and the accused. For instance, in the Tarun Tejpal case, crucial CCTV footage was leaked on social media and opinion pieces declaring the innocence of the accused were already written before the case could go to trial. In the actor assault case in Kerala, the complainant has been repeatedly subjected to the humiliation of the accused delaying the trial by asking for a copy of the visuals that capture the sexual assault. 

It is not any different for younger victims of sexual violence. In a 2012 POCSO rape case in Bengaluru, the defence even suggested that the seven-year-old victim was sexually active. Later, during the trial that resulted in an acquittal, they claimed that she had a "vivid imagination." In the Pascal Mazurier case where a French diplomat was accused of sexually assaulting his own daughter, the child's mother was subjected to character assassination because she had dared to speak up. 

Even in cases where the evidence is airtight and the police and the courts are inclined to be sympathetic, the victims and their families are subjected to nothing but a trial by fire before they receive some closure. In the case of a seven-year-old in Chennai who was sexually assaulted and murdered by her neighbour, for instance, the accused threatened the father at the court premises that he would murder his son, too. The family had to move to Andhra to keep safe. The police even let the accused escape from custody, making the family feel extremely unsafe. 

And then there are cases like the Hathras gangrape where the police and the political class collude to obliterate evidence and turn complaints into lies. 

Movements like #MeToo are a result of the failure of the legal system to offer adequate and sensitive support to survivors, and of society's hostile attitude when they wish to speak up. What is a survivor to do if she does not have eyewitnesses to corroborate her testimony? If the violence left a gaping hole in her heart but no evidence on her body? If she has not been able to gather material evidence that supports her statement? If her 'no' was too feeble for the court to believe her? If it takes years for her to process the trauma and she can only bring herself to speak about it decades later? Does that mean the incident never happened? 

When those who follow due process are treated so brutally and the conviction rates are so abysmal, where is the incentive for survivors to approach the law? Many would and do prefer to keep their silence and try to move on in life. But when a movement like #MeToo comes along, and an avalanche of stories, similar to theirs, awakens those long suppressed nightmares, many find it within them to speak at last. Even if anonymously. Those who have followed #MeToo closely will know that several survivors just want to be heard. They want their stories to be acknowledged. They want to unburden themselves among people who will believe them instead of subjecting them to an inquisition. Very few cases have actually gone to court - with the statute of limitations in place for a criminal complaint (not including rape) and the sheer impracticality of gathering evidence for a crime that occurred several years ago, the probability of a conviction is even lower than usual. 

It can be argued that just outing a predator on social media is unfair to the accused, even if those who are doing the outing follow a vetting process. But unless we make substantial changes to the rape culture in which we live, turning our skeptical gaze from the survivor to the accused, unless we encourage survivors across the board to speak up, refusing to protect men accused of sexual crimes, flawed movements like #MeToo will continue to spring up. And they absolutely should. 

The next time you're tempted to ask why someone didn't file a complaint, ask yourself if you would have believed her if she had done so. If the police would have believed her. If the society she lives in would have believed her. If her educational institution or workplace would have believed her. If the media would have believed her. If the court would have believed her. If her long walk on a path strewn with broken glass will get her a conviction. Closure. And then you'll have your answer.

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