In May, an Indian court in the coastal state of Goa acquitted Tarun Tejpal, the former editor of a leading news magazine, of raping a young female colleague in a high-profile case that made headlines across the country.
During the trail, old emails from 2013 resurfaced where he apologized to the survivor for his behavior and described the event as a "lapse of judgement" and an "unfortunate incident."
In his final court statements Tejpal, who has maintained he was falsely accused, described the incident as "drunken banter."
Tejpal was the one accused of the crime back in 2013, but it was up to the survivor to bear the burden of providing the proof. She was the one put on trial and accused of not "behaving like a victim" by Judge Kshama Joshi. The court also said she exhibited "unnatural" behavior by continuing to stay in touch with Tejpal.
Survivor on the defense
None of this is surprising. When it comes to sexual harassment cases in India the survivor is forever on the defense, forced to repeatedly relive the events of the abuse during questioning.
Unlike any other crime, the onus of proof is pushed onto the woman. She is the one who has to prove her truth, instead of the person accused of committing the crime.
Not too long ago, we were celebrating the victory of Priya Ramani in a defamation case — a win for India's #MeToo movement. She was acquitted by a New Delhi court on charges of criminal defamation for accusing former editor-turned-politician MJ Akbar of sexual harassment in 2018, while she was a young professional working under him. While this was a good precedent, we seem to have forgotten that it was once again the woman defending her right to speak up against sexual harassment.
Basic respect for women still lacking
It is shockingly common for survivors to be questioned about their clothes, their behavior, their sexual history and so on, when such cases go to court.
In June 2020, in which a court in India's Karnataka state granted bail to the accused, the judge stated that it was "unbecoming of an Indian woman" to have gone to sleep after the crime. "That is not the way our women react when they are ravished," said Justice Krishna S Dixit, as reported by India Today.
And, in a 2017 case which showed a shocking lack of understanding of the rules of consent, Delhi's high court acquitted a film director accused of rape on grounds that the woman's no was too "feeble" to matter.
After the 2012 Delhi gang rape that shook the entire country, India made several progressive changes to its sexual harassment and rape laws. The definitions of rape and consent were broadened and elaborated, and punishment for the crime was increased. It's undeniable that some progress has been made.
However, basic respect for consent and the woman's autonomy have yet to find a permanent place in the minds of the judiciary, which still seems to be guided by an orthodox, regressive and patriarchal understanding of sexual crimes.
99% of cases go unreported
Until courts start to see survivors of sexual crimes as the victims, there is little hope. Courts must understand the courage it takes for women to come to them to seek justice.
Indian women are well-aware of the consequences they must face for speaking up. High-profile rulings like the Tejpal verdict leave little room for respecting the survivor's basic dignity and right to privacy. Defense lawyers and courts often add false accusations as an excuse to not believe women, even though studies have repeatedly shown these are extremely rare.
It's no wonder that almost 99% of cases of sexual harassment and rape go unreported in India. If India wants its women to feel safe, it must place the onus of proof squarely where it lies: on the perpetrators.