Judging the victim’s character in Tarun Tejpal case

The Goa Sessions Court’s acquittal of former Tehelka editor Tarun Tejpal in a rape case has caused deep misgivings due to the observations made by Additional Sessions Judge Kshama Joshi about the complainant.

Tejpal was on trial on charges of sexually assaulting a junior colleague at a hotel in Goa on November 7 and 8, 2013. In acquitting Tejpal, the judge drew attention to lapses on the part of the investigation and prosecution to build a solid case against Tejpal.

The Goa government has challenged the trial court’s verdict in the Bombay High Court, and it is for the High Court to scrutinise the trial court’s judgement. But there are remarks about the complainant, her conduct, habits and attitudes in the judgement which are not relevant to the case and which should not have found mention in the judgement, much less influenced the verdict.

Also read: Bombay HC notice to Tejpal on Goa govt's appeal against acquittal in rape case

The judge remarked that the complainant’s behaviour was not indicative of a sexual assault on her. In Joshi’s perception, she “did not demonstrate any kind of normative behaviour” that a victim of sexual assault “might plausibly show”.

She was neither “traumatised nor terrified” and this “completely belies” the prosecution’s case. Is there a “normative behaviour” for a sexual assault victim? What is the “normative behaviour” she should have displayed to convince the judge that she was indeed sexually assaulted?

Even more mortifying is Joshi’s victim-blaming. If she was “terrified of him and not in a proper state of mind, why would she report to the accused and disclose to him her location,” the judge asks. The judge seems to have overlooked the context of the case and the power differential that exists at the workplace.

The judge gave the accused the benefit of the doubt and hauled the victim over the coals, even criticising her for seeking the help of lawyers, feminists and members of the women’s commission before drafting her complaint. How is that wrong? The judge’s shaming and blaming of the complainant will deter other women from seeking justice in cases of sexual assault.

The judgement has been criticised as unfair and defective for its questionable evaluation of evidence, poor inferences and wrong assumptions. The judge’s observations about the complainant’s conduct are not tenable and point to a misogynistic view that expects the victim of sexual assault, rather than the perpetrator, to feel ashamed and traumatised through what has turned out to be an inordinately long trial.

When judges make such observations as were made in this case, it is natural to conclude that such thinking influenced the verdict. That would amount to wrong application of the law on sexual crimes and violation of many Supreme Court directives.