Why there is a law forbidding naming of sexual violence survivors

Vijay Babu, a Malayalam actor and producer accused of sexual assault by an actor, named the survivor, breaking the law.
Vijay Babu
Vijay Babu
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On the night of April 26, when Vijay Babu, actor and producer in Malayalam films, went live on his Facebook page, he decided to name a young woman who filed a case of sexual assault against him. It was not a slip of the tongue, not an accident. Vijay Babu said that he wanted to name the woman – a new actor in the industry – because his name was out there already and he didn’t think it fair that hers was not. He knew this was against the law, he said, and was ready to face the consequences. Comments posted below his video supported Vijay, backing his claim that if an “innocent man could be dragged into the open," the woman who accused him could also be pulled into it.

While on the one hand, sexual violence survivors are often questioned for not speaking up sooner, studies have shown that when the abuse is revealed, survivors are the ones met with negative social and community reactions, which include victim-blaming, encouraging secrecy and patronising behaviour. Women who named their alleged abusers in the Me Too movement have also spoken about loss of work opportunities, losing relationships, and lasting isolation after they publicly spoke up. It is in this context that the law – forbidding the naming of the victim or survivor of a sexual assault – exists. “It is taking into account the Indian social reality, where the woman who is [sexually] attacked is stigmatised. In this context, sexual assault is considered shameful for a woman though she is the victim. A provision for victim anonymity was brought into the law exactly for that reason,” says Manu Sebastian, lawyer and managing editor of LiveLaw.

One would assume that people would shun the accused, but in any case of sexual assault, it is the victim [or the survivor] who gets shunned, says Nagasaila, lawyer at the Madras High Court.

Section 228A

Both the lawyers also point out that the anonymity promises a certain protection for the survivors to come forward and make a complaint. Section 228A in the Indian Penal Code addresses this and bars disclosure of the identity of survivors of sexual assault. “Vijay Babu should be prosecuted for the offence and another FIR registered against him,” Nagasaila says.

“This (naming of the survivor) has been done very deliberately and the intention is very clear. He has not unwittingly disclosed the name. He has gone out with a very clear intent of shaming the survivor knowing fully well that a victim or survivor of sexual assault faces social stigma,” Nagasaila says.

‘It is the accuser who suffers’

In his Facebook Live video, Vijay Babu claims that he is the victim in this case, and goes on to narrate that the survivor had messaged him in the past few months. He further says it is not fair that she is unnamed while he has been named and goes on to reveal her identity and the film she’s worked in with him.

“What is unfair about protecting survivors’ identity?" asks women’s rights activist Kavita Krishnan. "It is an allegation and the facts are in the public domain. What is this assumption that every time a sexual assault case is filed, it is false? I want to know which case is considered true?” 

“When have the accused ever suffered any consequence? It is always the accusers who have suffered. The accused will have barely any negative consequences to their career, their loss of privilege is zilch. Yet, they complain because of the only thing the survivor achieves by putting her story out there – that there will be people who believe her. On the other hand, for every stranger who comes in support of her, saying that they believe her, there will be a hundred others calling her a slut and accusing her of lying. In this case, the accused man knows that nothing will happen though he is violating the law,” Kavita adds.

The law has become stricter over the years and the Supreme Court ruled in 2018 that even a dead victim of sexual assault cannot be named. “That happened in the Nipun Saxena vs Union of India case of 2018,” Manu says. The judgment says, “No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.”

It also adds that in “cases where the victim is dead or of unsound mind, the name of the victim or her identity should not be disclosed even under the authorisation of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which, at present, is the Sessions Judge.”

The argument for naming an accused in a case of sexual assault if they are in a position of power - even if there isn’t a formal complaint against them yet - was also a premise for the Me Too movements. Given how the criminal justice system is lacking in providing relief to survivors, the Me Too movement was a way for many to tell their stories on their terms, and regardless of criminal prosecution, warn others about the alleged harassers. 

However, there is also a perspective that the name of the accused should be protected unless it is otherwise made public in the course of legal action. Journalist Kalpana Sharma, who holds this position, says that until a survivor files a case against a person, they should not be named. "My concern was often for people accused in riots and other such cases, where they are picked up by the police and immediately their photographs are displayed in the media. Media reports are made before checking whether a chargesheet has been filed, simply on the basis of police giving out information. To be fair, that should not be the case even in a rape crime, until a survivor files a complaint. Then, an FIR is registered and it is a public document. You can and should name the accused after that," Kalpana says.

‘Assumption that it’s a false case when women are victims’

“Very often, apart from the physical harm, it is more about the psychological and social trauma that follows and the sense of shame that the victim carries. This sort of shame will not be there for any other crime, like theft or physical assault, as long as it is not sexual in nature. Being a victim of any other crime carries less or no stigma so people can come out and say it happened to them,” says Nagasaila.

Another interesting observation she makes is about the haste with which people call such complaints of crimes against women as false cases, like it happened in the comments under Vijay Babu’s video. “Domestic violence, dowry harassment, section 376 (sexual assault) and subsequent amendments – in all these legislations, the general response is to cry out saying women took advantage, and false FIRs were filed. Abuse of law is universal. You see abuse of the UAPA (Unlawful Activities Prevention Act) and sedition laws day in and day out. But there is no call to repeal these statutes. The only call happens for offences committed against women or members of the Scheduled Castes and Scheduled Tribes. Then they say it is a false case,” Nagasaila adds.

Law’s disadvantage to survivors

Kavita points out that the law could sometimes be of disadvantage to a sexual violence survivor who wants to come out in the open. “There is a way in which the law works against the victim in many instances. Essentially, if she is not named, the accused is able to violate her privacy, spread all kinds of stories about her. However, her voice is gagged, because due to this law, she cannot come out and tell her own truth because it is an ongoing case. Suppose she is no more, then her parents are prevented from naming her,” Kavita says.

Kavita argues that while the law should protect the privacy of the survivor and prevent the accused or any other person or media from naming them, it should allow the survivor to waive that confidentiality if she wishes to and wants to come out in her own name and on her own terms, or if she is no more, her family should be allowed to consent to naming her. Kavita mentions the case of Suzette Jordan, the rape survivor in the Kolkata Park Street case, who revealed her identity a year later, not wanting to live with the shame of sexual assault anymore. She also mentions the memoir Know My Name (2019) by American author and rape survivor Chanel Miller, who was the survivor in the very public trial of athlete Brock Turner, who sexually assaulted Miller at a Stanford frat party in 2015. The book was her way of “reclaiming her identity” which had been anonymised thus far.

(With inputs from Geetika Mantri)

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