Guest Post by PRATIKSHA BAXI
When an ongoing rape trial becomes a controversial ‘story’, much rests on journalistic practice: how the story is plotted, the metaphors used, and the visuals that accompany the text. Writing about sexual violence is challenging if one wants to resist voyeurism, yet sell a ‘story’. It means resisting reproducing ‘tabloid’ pictures of law.
Given that there is very little literacy about the newly amended rape law, it is not apparent to many why forms of sexual violence, other than forcible penile penetration of the vagina, should be called rape. Nor is it acceptable to many people that a man be sentenced for ten years (or more) for rape when it is not accompanied by annihilating physical violence.
Is it then incumbent on journalists to indicate that the 2013 amendments to the rape law create new meanings of rape, some which are not accepted as rape in society? Indeed, what role do journalists have in interrogating the social and collective toleration of sexual violence?
The ‘draconian’ framework
The 2013 amendment of the rape law, crafted in the wake of the cry for death penalty, recognized that rape could not be limited to forcible vagino-penile penetration. The law now recognises that if a man penetrates a woman’s vagina with his fingers without her consent or against her will, is rape. The law does not grade sexual violence as heinous or routine offences on the basis of which part of the body is used as a weapon. Rather, rape is seen as a violation of the personhood of the survivor. And hence, the indignity and humiliation of rape is not graded on a scale depending on what body part was used or which orifice was penetrated to perpetrate the violation.
Further, what makes rape an aggravated offence is not only dependent on the quantity of extreme violence deployed. Rather, such an offence is considered an aggravated offence if the accused person holds a position of power over the victim—of custody, trust or a fiduciary relationship. Rape is an offence of power—it does not always need evidence of aggravated violence, nor does it require physical injuries to indicate resistance, as in the Delhi gang rape case.
In the aftermath of the complaint against Tejpal, the amended rape law has been dubbed as ‘draconian’. While there is always scope for legislative improvement, we need to ask ourselves why is naming sexual violence, a violation of personhood, or an infringement of the right to life, which includes the right to dignity, draconian? Must every case of sexual violence entail the horrifying violence witnessed in 2013 Delhi? Or can we begin to think of “real” victims differently?
If the concern is that the sentencing structure is ‘draconian’, then we need to first examine how the media represented the popular demand of death penalty in rape cases. And we must take responsibility for our positions. For when the legislators resist the clamour for capital punishment, the severity of the sentence is seen as signalling that the state will not tolerate an intolerable offence.
For many in the media, capital punishment makes a ‘story’ sell; yet it also means accepting the viewpoint that conviction and sentencing is the dominant mode of deterring sexual violence. Even though we know that most sexual violence that suffuses intimate relations and domestic spaces will not be deterred by capital punishment.
Others argue that the removal of judicial discretion in sentencing is what makes the amended law ‘draconian’. However, judicial interpretation of the amended law may have a different story to tell—only time will tell.
The reason for dubbing the law as draconian seems to gesture towards a concern with the rights of the accused. However, if the concern is with the rights of the accused, must it be seen in opposition to the rights of the complainant? Perhaps, we may be able to judge what is draconian about the criminal legal system if a ‘story’ were to be plotted around the patterns of bail to rape accused, the conditions that meet rape accused in prisons, or why public horror is directed at some rape accused, and not others.
Predictably, some of us have been asked to write about whether or not the amended law is draconian—the story sells precisely because it taps into anxieties about the newer definition of rape and what constitutes consent. There seems to be no serious concern with the pathologies of the criminal legal system. Indeed, the characterisation of the amended law as draconian itself becomes breaking news.
What does Manu Joseph want us to see?
In this context, Manu Joseph’s article, “What the Elevator Saw” (Outlook, 7 April 2014), which has sparked off a debate on what is a balanced story, becomes a story about journalistic practice itself. This commentary is confined to the genre of journalistic practice showcased in this article.
Joseph’s article begins with ventriloquizing the grief of a daughter whose father embarks from a police van. The opening paragraphs of the article invite the reader to visit the grief of the Tejpal family. Even if the consent of the family members is solicited to represent their side of the story, the article makes the young daughters of the family even more recognisable than before by naming them and providing photographs, if one cannot remember their names. On the one hand we read that the family, stigmatised by the media reports, had to move out of their rented accommodation and on the other hand, we find a blithe lack of concern for the privacy or even safety of the young daughters who stand by their father. Other than evoking empathy for the family, the first few paragraphs do little to detract from the perception that those who have viewed the CCTV footage provided the script for the breaking news of the Tejpal tapes.
Surely, if one of the grounds for the denial of bail is the anticipation that the media will be used to undermine the legal process once on bail, Mr Tejpal’s supporters and colleagues ought to desist from enhancing this perception. Further, if the ground for denial of bail is misuse of power to influence the complainant into turning hostile, any suggestion of indirect familial or collegial pressure could be construed as intimidation. Nor does well-intentioned journalism, which claims to present two sides of the story, provide a reader sufficient information to draw reasonable conclusions about the local political economies of incarceration (e.g., denial of pen and paper in prison).
Instead, what follows is a juxtaposition of the complaint, apologies, interviews and testimonial excerpts with a description of the CCTV footage. I would argue that it is not so important whether or not Joseph himself watched the footage himself or someone described the same to him frame by frame—what is more important is how this footage is reified as the signifier of the Truth of this trial. It is the footage that is positioned as the most important piece of evidence that makes this a breaking story since the defence claims the footage will displace the testimony of the survivor.
Therein starts an excruciating frame–by–frame account of the inconsistencies in the narrative of the complainant, detailing what was remembered before or after she viewed the footage. While there are references to what constitutes minor or major inconsistencies in law, these ‘inconsistencies’ become the story. Every other detail of the complaint has already been reported in great detail in the media. The ‘story’ hinges on producing scepticism framed by inconsistencies, even though the ‘other’ side is carefully presented. What is almost funny is that in the interest of writing a balanced piece, Manu Joseph discovers that he too does not have a photographic memory.
Journalists would do a public service were they to realise that rape survivors have been expected to have a photographic memory, and repeat what happened to them in forensic detail. The oldest defence ploy in attacking a rape survivor’s testimony is to introduce a narrative of inconsistencies especially when these are totally irrelevant to the crime. Defence lawyers know that memory is not linear, the act of remembrance is traumatic and narrative coherence is often a sign of recovery. The police know that pain has the capacity of destroying language—after all that is what torture is premised on.
While it is expected that a survivor should narrate the most minute and irrelevant details of what happened, it is also expected that a survivor must display extreme signs of distress in her behaviour. A survivor’s attempts at trying to restore normality in appearance or behaviour (e.g. tying up one’s hair or resuming work) are seen as evidence of lying.
Surely withholding the name of a survivor is not sufficient to accord dignity in representation to the survivor.
In the interest of making a persuasive story, journalists avoid the language of law where a complainant is referred to as the prosecutrix, witness, victim or survivor. Sometimes, journalists refer to a survivor as an alleged victim. At other times, they conceal the identity of the victim by using fictional names of larger than life cinematic rape survivors. For instance, the Delhi Gang rape victim was named Damini and then Nirbhaya. The name Nirbhaya was soon to become popular and potent that the government announced a fund in the name of the symbol of the innocent Indian rape victim, Nirbhaya.
In Joseph’s story, the complainant is referred to as the Young Woman, emphasizing her youth. Such references do not evoke the popular image of the innocent rape survivor. This finds elaboration in the illustrations, which accompany the text.
One of the online editorial rectifications that is found in Joseph’s article is the rectification of the first illustration that accompanies the text. The illustration in the print edition however depicts a woman holding the hand of a man as they are entering the lift, while the text says that Tejpal was leading her (or pulling) into the lift. Indeed, taken together the illustrations suggest that the woman is pursuing the man. She is dressed in sleeveless top, skirt and high heels. The images fit into the stereotype of a young woman with brown hair, fashionably (read: inappropriately) dressed and who does not appeared to be under any duress. The illustrations replace the CCTV camera, directing the gaze of the reader to the chief argument of the defence—the footage as evidence of consent for the defence.
We are then invited to view the representation of the footage to arrive at a dispassionate and balanced opinion on the case. We are subjected to a forensic description of how many seconds a lift takes to reach one floor to another, what happened outside the lift and on which floor. We are then invited to enter the scene of crime. For instance, the narrative invites the reader to imagine how the assailant could keep a lift in circuit, if he needed both hands to commit the crime. In reconstructing how many seconds it takes for the lift to move from one floor to the other, the narrative erroneously suggests that duration is legally relevant evidence.
When there is enough pornography around this case in social media for those interested in learning pedagogies of violence—why subject those of us who abhor such pedagogies? Rather than anticipating the questions a defence lawyer may ask during trial, a balanced journalist would resist the voyeurism that a rape trial evokes.
We are asked to determine whether the accused person is a ‘foolish’ rapist or a ‘drunken’ flirt, idiotic enough to send the suggestive fingertips text message to an employee aware of her rights. This description ignores the context of power at the workplace that exists between a boss and an employee. In this account, not only is it appropriate for a drunken employer to be portrayed as ‘flirty’, he is characterised as plain stupid (as versus arrogant).
Here, we encounter one of the most telling descriptions of the survivor—‘a competent journalist’ whose area of specialisation, we are told lies at the intersection between rape, law and society. For those of us who do not know anything about the complainant, this description is alarming since it does not labour to conceal the woman’s identity. Further, it also more insidiously suggests that a woman who writes about rape is more likely to know how the law works.
If Joseph did not want his story to read like a tabloid version of courtroom talk in rape trials, he should have known that raped survivors are disbelieved because they possess a degree of legal literacy. There have been cases where a survivor was disbelieved on the grounds that she got her complaint typed and went from police station to police station; or on the grounds that she filed a petition for compensation.
Historically speaking, judicial bias has been directed at educated and ‘westernised’ women who transgress social norms. Women who research and write against rape as part of their professional work are also pictured in our society as ‘available’, ‘abnormal’, ‘immoral’ and ‘transgressive’.
Surely a balanced journalist would argue that if a rape survivor has researched sexual violence, it does not mean she asked for it. If a journalist shares her story on rape with her editor or shares the emotional distress that one experiences while researching sexual violence, such a conversation is professional. Even if Joseph did not intend to suggest that a literate rape survivor is more likely to be disbelieved, it is incumbent on a balanced journalist to critique the strategy to convert a rape story a journalist is working on into an erotic conversation. Why is it so hard to acknowledge the fact that a woman researcher or journalist’s work, i.e., to research sexual violence, often makes her more vulnerable to sexualisation, sexist comments, harassment, stalking and/or sexual violence?
The scandal is that the setting of new standards of professionalism that ought to meet journalists who research and write about sexual violence is still not the biggest breaking news. More than a story about the Truth of the Tejpal tapes, this article may be read as the story, which exposes the Truth about journalism and its discontents.
Pratiksha Baxi is Associate Professor, Centre for the Study of Law and Governance, JNU, and the author of Public Secrets of Law. Rape Trials in India (OUP 2014).