Indian judiciary needs to introspect on how it treats victims of sexual abuse

What role do “all probabilities” assumed, or rather presumed by a judge play in the adjudication of cases of child sexual abuse? How do such presumptions about the complainant go on to shape judicial decision-making? These questions become especially pertinent when the judge slams the complainant’s behaviour, blames the complainant for her own plight and doubts the credibility of her testimony.

In an ideal world, such kind of victim-blaming would not mar judicial decisions, because of the oblique insensitivity and bias which results in secondary victimisation of the complainant, but the reality is far different. This becomes apparent in a recent Order by Justice Sadhana Jadhav of the Bombay High Court, in which she granted bail to a man accused of sexually abusing his adopted daughter over a period of nine years. Justice Jadhav’s reasoning, especially its tenor, underscores the dire need of sensitising judges so that justice doesn’t go abegging.

Adjudication or Inquisition?

In deciding whether to grant or refuse bail, the court is required to see only if there are chances of the accused abusing his liberty, or of tampering with the evidence. It is not for the court to decide if the charges are true or false, because that has to be determined at the time of trial.

However, Justice Jadhav ignores this very basic principle and proceeds to determine the veracity of the charges leveled by the complainant. And shockingly, she does this in a manner which reeks of an inherent distrust of the complainant.

Moreover, since the case was brought under POCSO (Protection of Children from Sexual Offences) Act, the Order also ignores Section 29 of the law which mandates that the court shall presume an offence to have been committed unless the contrary is proved. The manner in which Justice Jadhav gathers this ‘proof’ is also sufficient to shock one’s conscience.

The Superintendent of the protective home where the complainant was staying had made her write an account of her life, in which she had apparently confessed to “doing dirty things” since childhood. The judge relied on this fact to arrive to the conclusion that the complainant was “inherently abnormal and had sexual instincts right from her childhood.” This was, “in all probabilities”, due to the conduct of the complainant’s mother who died of HIV, the judge continued. She also held that the time gap of nine years after which the complaint was lodged, made it inherently untrustworthy. She also observed that despite attaining majority, the complainant was still lodged in a protective home because of “in all probabilities, her unnatural behavior.”

In other words, Justice Jadhav just stopped short of saying that the complainant had lured the accused with sexual advances, that she had inherited certain traits from her promiscuous mother (do note the reasoning — that because she died of HIV), and had cooked up the accusations to cover up her own failings.

It would be difficult to find a more glaring example of victim-blaming and relying on false and baseless myths. There is also the reliance on the outmoded belief that failing to report abuse ‘on time’ makes the complainant less credible.

Need for Judicial Sensitivity

While dealing with cases of this type, the courts and justice delivery system are supposed to play a social role — to go by the totality of circumstances, instead of just relying upon the black letter of the law or superficial facts. So it was incumbent upon Justice Jadhav to ensure that in trying to obtain knowledge, she did not end up punishing the complainant.

A crucial part of this duty is the need to dispel blame — the myths that focus only on the comportment of the complainant, without factoring in the multitude of reasons as to why a person acted in a certain manner. In child sexual abuse cases, the majority of complainants have to undergo the distressing experience of having their evidence torn apart by the shards of disbelief. Because of this, it is essential for judges to ensure that from the very start, the entire case does not become a discrediting process. Not doing so is an abdication of a sacrosanct judicial duty, with the result that it instills violent fear, instills fear in the complainant instead of boosting her confidence and faith in the justice delivery system.

Of late, there have been a plethora of judgments in which the courts have laid down protocols regarding how the prosecution and police ought to deal with rape and child sexual abuse cases. However, these guidelines have maintained a stony silence on the duties of the judiciary. Unless this is rectified, complainants and victims shall continue to be constrained and intimidated by violence and the fear of violence.