Updated: Feb 12
Victim precipitation theory, which is believed to be the first theory of victimization, provides that victims contribute to the commission of a crime against them, either through facilitation or provocation. The recent trends indicate that this theory is being increasingly applied to understand the victimological phenomenon and determine the victim's role in assessing the culpability of the offense. But the application of this theory often takes the form of victim-blaming, where the victim is either entirely or partially made responsible for crimes committed against them. Even in India, the theory has been applied to evaluate the role of the victim and the extent of the fault of the criminally accused person. The concept applies to both grievous offenses such as rape as well as mundane crimes such as pickpocketing.
In our country, the stark example of the theory is visible in the cases of rape and sexual assault against women. It often occurs that the women are ridiculed for their lifestyle, dressing and often blamed for the occurrence of sexual crimes against them. The author, therefore, seeks to discuss how the concept of precipitation takes the form of victim-blaming and shaming by analyzing the judicial trends.
THE ART OF BLAMING AND SHAMING: THE JUDICIAL FALLACY
Victim blaming in the name of victim precipitation to understand the dynamics of commission of a crime is evidently present in numerous cases of the country. In the common parlance, the women are blamed for their victimization and often face the brunt of misogynist and patriarchal remarks at the hands of our hon’ble justices. The most controversial case in this regard was a recent judgment given in the case of State v. Tarunjit Tejpal[i]. The judgment on detail to discuss the victim’s social life, WhatsApp chats, emails, and past relationships, remarking that “The messaging record shows that it was entirely in the norm for the prosecutrix to have such flirtatious and sexual conversations with friends and acquaintances.” Furthermore, the judge observed after seeing the CCTV record that the victim “did not look disturbed, reserved, terrified, or traumatized in any way even though this was immediately after she claims to have been sexually assaulted…It is extremely revealing that the prosecutrix’s account neither demonstrates any kind of normative behavior on her part – that a prosecutrix of sexual assault on consecutive two nights might plausibly show. This case is a stark example of why women refuse to seek the course of justice. The blatant victim shaming by judicial officers of the country invalidates the experiences of many who do not quite meet the ‘expectations’ of being a survivor.
In 2016, the Supreme Court of the country delivered a judgment in a case of gang rape where the court made several comments on the conduct of women after the assault was committed on her. The Judges of the apex court of the country remarked that "her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive and consensual disposition. The court went on to belittle the suffering of the women further remarking that “Her post-incident conduct and movements are also noticeably unusual. Instead of hurrying back home in a distressed, humiliated and devastated state… her confident movements alone past midnight, in that state, are also out of the ordinary.” In another glaring instance, the Karnataka High Court observed that “nothing is mentioned by the complainant as to why she went to her office at night, that is, at 11 PM; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished. ”It is distressing that such patriarchal and misogynistic mind set of judges have shrouded their reasoning. Their verdicts are based on social conditioning and expectations instead of taking into view the factual and legal matrix.
Even in the case of Vikas Garg v. the State of Haryana, the Punjab and Haryana high court remarked on the victim's lifestyle, ‘casual relationships,’ ‘promiscuous attitude’, and ‘voyeuristic mind'. The court reasoned in judgment that "The testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism, and experimentation in sexual encounters and these factors would, therefore, offer a compelling reason to consider the prayer for suspension of sentence favorably particularly when the accused themselves are young and the narrative does not throw up gut-wrenching violence, that normally precedes or accompany such incidents”. Such a stereotypical view undermines the victimization account of sexual assault survivors instead of aiding in the proper distribution of justice. The court often crosses the very thin line between determining the events that lead to the commission of a crime and actually making the victim responsible for the injustice done to them. These archaic notions of “ideal victim of sexual violence” are ironic to the entire concept of objectivity in our justice system. Our justice system instead of policing women on how to behave should rather take steps to discourage such heinous crimes against women.
CONCLUSION: THE WAY FORWARD
Conclusively it can be established that our judiciary often resorts to victim-blaming in the name of victim precipitation. This concept of assessing the role of victims in the offense has taken the form of victim-blaming, ostracising their dignity and right to justice. The line between objective reasoning and subjective prejudices get blurred in the process.
This ought to be altered immediately and change has to begin from the grassroots level. There needs to be a team of special recruiters and trainers to sensitize judges to the plight of victims. As has been remarked by the Supreme court that it becomes imperative “that greatest extent of sensitivity is to be displayed in the judicial approach, language, and reasoning adopted by the judge”.
The Judges should be made cognizant of not using such archaic and problematic notions in assessing the role of the victim in a crime and should be careful to not blame the victim. Our legal system must support victims and offer them justice rather than shaming them for their behaviors. There should be objectivity in their reasoning and their judgment should not be clouded by prejudicial notions.
[i]State v. Tarunjit Tejpal, CR. No. GANG01000854/2014, Sessions Case (Ors) No. 10/2014.
*The article has been written by Sakshi Sethi, (Associate Editor), CCV (RGNUL)*