[Rape cases] Courts should not fall prey to stereotyped notions about survivor’s chastity, resistance, conduct: Kerala HC

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The Kerala High Court on Wednesday observed that courts must avoid scrutinizing feminine conduct through a masculine lense [Vijay Babu v State of Kerala].

Justice Bechu Kurian Thomas held that courts must avoid falling prey to stereotyped notions, myths and generalisations about what appropriate conduct might be, especially in cases involving sexual offences against women.

Such “rape myths” include chastity, resistance to rape, behaving in a certain way etc.

“Courts must also avoid scrutinizing feminine conduct from a masculine point of view. Myths, stereotyping and even generalisation, which are all different forms of bias, must be avoided…the stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving in a certain way, reporting the offence immediately, etc are all rape myths,” the Court said in its order.

In this regard, the Court cited the judgment of the Supreme Court in Aparna Bhat & Ors. v State of Madhya Pradesh & Anr., which began with this quote from Norwegian playwright and theatre director, Henrik Ibsen.

“A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.”

Notwithstanding the above, the Court emphasised that care must be taken to avoid consensual relationships being converted into instances of rape as well.

The Court made the observations in an order granting anticipatory bail to Malayalam actor-producer Vijay babu in a rape case that was registered against him after a debutante actress accused him of sexually exploiting her under the guise of offering movie roles.

Even though exhaustive arguments were raised on behalf of the accused, the complainant and the prosecution, the Court reminded itself that at the stage of anticipatory bail, it cannot delve deep into the merits of the case, including whether or not there was consent.

“The nuances of ‘consent’ under the Indian Penal Code or of ‘rape’ are not to be deliberated upon at this stage, lest it prejudices either side, at the time of trial. In this phase of legal proceedings, this Court is only to consider the competing claims of liberty of an individual guaranteed under Article 21 of the Constitution of India as against the power of investigation of the police against a person accused of a serious crime,” the Court said

The Court placed heavy reliance on the judgments of the Supreme Court in Shri Gurbaksh Singh Sibbia & Ors. v State of Punjab and Sushila Aggarwal & Ors. v State (NCT of Delhi) & Anr. and held that what must be considered are the nature and gravity of the offence, the facts of the case, the character of evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offences, the possibility of the accused tampering with the evidence and obstructing the course of justice.

Viewed in that perspective, the Court deemed it fit to grant anticipatory bail to Babu, subject to certain conditions.

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