Swati Maliwal Shames Rape Survivor – But Did She Read SC Ruling?

Acquittal of two rape convicts on appeal to SC, on shaky grounds, points to a crisis in our mentality & judiciary.

Image used for representational purposes.

(Photo: Shruti Mathur / The Quint)

The Supreme Court wrongly disbelieves a rape victim, and based on a journalist's disinformation, a women's commission chief joins the bandwagon. This points to a crisis.

In an incident which has the potential to send ripples across the judicial, media and political spectrums, a very problematic acquittal on appeal, of two men convicted of rape, has been turned into an opportunity to cast aspersions on rape survivors whose complaints are not believed by courts. The aspersion was not cast by nondescript users on social media, but by a senior journalist; and most troubling of all, by the head of a state women’s commission.

All court rulings, even those of the apex court, do not garner the attention of the media or the public, and the present one would also have gone unnoticed, but for a report in The Times of India (Girl Fakes Rape, Men Jailed for Years ; 22 August) and a tweet by Swati Maliwal, who heads the Delhi Commission for Women.

Reacting to the sensationally headlined report, Maliwal tweeted:

If one goes beyond the TOI report and refuses to take his words at face value, and instead reads the full text of the apex court judgment delivered by a bench of Justices Mohan Shantanagoudar and N V Ramana in the case of Sham Singh, and then scrutinises the Punjab and Haryana High Court judgment which the apex court set aside, one cannot escape the feeling of grave consternation.

A Problematic Acquittal

Two men – Jai Singh and Sham Singh – who had been sentenced to ten years in jail each, after being convicted of raping a 15-year-old-girl, had appealed to the Supreme Court. While Jai Singh had already served his sentence, Sham Singh had three more years to go.

The apex court, while setting aside Sham Singh’s conviction and setting him free, expressed its concern at innocents having to spend so many years in jail on the basis of a complaint which it found had not an iota of truth.

The apex court bench placed substantive reliance on the defence’s argument that neither were any injury found on the prosecutrix, nor were any semen stains and other forensic evidence found on her clothes and undergarments. Besides these two crucial aspects, the bench also found that the testimonies of other prosecution witnesses were not convincing enough (it is to be noted that the prosecutrix had maintained the same stance in both the courts below as well as the apex court) and also that the prosecution had weakened its own case by not examining a key witness.

However, after going through the high court judgment, which had appreciated the evidence in far more detail, a glaring lacunae in the Supreme Court’s reasoning was exposed.

One, the prosecutrix had deposed that the medico-legal examination had been conducted four days after the incident, during which she had taken showers and also washed the clothes and undergarments she was wearing when the alleged crime was committed. So obviously, there would be no semen stains, and the vaginal swabs would draw a blank.

Two, regarding the absence of injuries, the prosecutrix had clearly deposed that her hands were tied to a cot and she had mildly resisted that. She had clearly stated that she was too intimidated to resist when the two men – her uncles – took turns to rape her. If she had suffered minor scratches, they would have healed by the time the medical examination was conducted.

More crucially, it has been well-established by now that the mere absence of injuries, or the fact that the victim did not resist, does not mean she agreed to forcible sexual intercourse or that rape wasn’t committed.

This writer has written about this in detail, and the government’s guidelines for medical examination of rape victims , especially the ones regarding instructions for medical officers prohibit against drawing any conclusion about the veracity of the complainant on the basis of absence of injuries.

Three, the prosecutrix had deposed that when she was being raped, the accused persons’ wives, mother and children were present in the same house. This, the apex court takes it to hold that it was implausible that the men would commit acts of rape when their family members were present in the same house. In doing so, the court completely ignores the fact that the prosecutrix was in their custody, and as it happens in so many cases of sexual abuse and incest which is endemic in India and the world over, rarely are the perpetrators dissuaded by the presence of their family members. And in countless cases, the family members are either complicit, or too scared to complain or offer resistance.

Swati Maliwal’s Regressive Statement

Delhi has one of the highest position in cities ranked on the basis of crimes against women, as per latest reports, and reportedly witnesses the maximum number of rapes in India. Therefore, the Chairperson of the Delhi Commission of women plays a pivotal role in ensuring women’s safety, and enjoys a lot of clout, and also bears an equivalent, if not more, degree of responsibility.

One doesn’t know whether Maliwal had clinically analysed the judgment before commenting, or whether she was going only by the sensational and misleading news report, aforementioned.

However, given the kind of power she wields as Delhi Commission for Women chairperson, and given the kind of widespread support her comment gathered (and is still gathering), it is incumbent upon her to think before making a statement.

But if her statement stems from her personal beliefs, it is very worrisome. Because there has been no scientific study of female mendacity in rape and sexual assault cases. In fact, it is now regarded as a trope created and perpetuated by (mostly) men, who are determined to evade accountability.

The latest NCRB statistics, however, show that out of a total of 55,071 rapes investigated and prosecuted in India, only 2,839 were classified as false – 5.15 percent – and this doesn’t even account for investigative and judicial biases. Studies done by noted criminologists and psychiatrists – for instance, Phillip Rumney, David Lisak et al, to name only a few, have shown how pernicious this widely prevalent trope is, and how it dissuades many genuine victims from coming forward with their claims. And how can one assert that merely because a case could not be proved that it is false? And to make matters worse, Maliwal was demanding the same punishment for making a false claim as it is for proven cases of rape.

Why We Need Feminism

Feminist activist Kavita Krishnan, who had strongly objected to Maliwal’s statement on Twitter, pointed out that there is a more serious angle to Maliwal’s statement. Krishnan told The Quint:

“It is when appointments are made to women commissions from among political persons, and not from among those who have spent years in the feminist movement where even though people have differences in opinion, they arrive at differences and agreements through intense and informed debates- that one comes across people in positions of power making such reactionary and regressive statements which are severely counterproductive to women’s interests.”

“Maliwal has been coming to the aid of women in the role of a do-gooder and has done some commendable work, but then the lack of experience in the feminist movement and strong refusal to engage with members of the movement will frequently give rise to such regrettable occasions and damaging viewpoints,” Krishnan went on to tell The Quint.

At the time of the publication of this report, Maliwal has not deleted her tweet or issued a clarification in spite of many pointing out the flaws in her comments.

Her office has said they will provide an answer after some time. Thereafter, this piece will be updated with her response. The TOI journalist has not bothered to go back and check if he has slipped on some point(s), and of course, the apex court is yet to take note of an evidently flawed ruling which came from its own stable.

All the more reason to keep analysing, critiquing and protesting.

(Saurav is a journalist, columnist and researcher based out of Delhi. He tweets at @SauravDatta29. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)