<b>Shekhar Gupta: </b>Anyone here has been raped and likes sex?

And smokes, drinks and has condoms in her room? Notion that young Indians leading liberated lives are asking for trouble needs revisiting

Why did a young woman go to watch a late-night movie with her boyfriend, wearing tight jeans and T-shirt? Does it not suggest a promiscuous relationship? Why did she not keep her parents and college informed, particularly when her daddy isn’t rich enough to give her the safety of a chauffeur-driven car?

And why were she and her boyfriend hanging around a lonely Delhi road at night, and why did they cadge a ride in an empty bus on an irregular run with six lumpen, hormone-laden young men in it?

What kind of reckless, adventurous, and irresponsible behaviour was this? The men in the bus were wrong to rape the girl and beat up the boyfriend, but why did you put four hormone-laden urchins in such a tempting predicament?

And when they did fall for that temptation, why didn’t you, following the principle Asaram Bapu enunciated later, not call them your brothers and offer to tie rakhis on their hands?

And if even that didn’t work, why didn’t you appreciate the odds and just play along? It would have spared you the violence and death. And since you had a boyfriend, maybe you too were used (or, as is preferred by our criminal lawyers, habituated) to sex. So what was the big, fatal fightback about?

If those poor boys, idiots, hadn’t killed you, they could have deserved a more lenient, even suspended sentence. After all, this case would then not have gut-wrenching violence, which precedes or accompanies such cases. It would have been just another non-violent rape, like 85 per cent of all of them, within families, on dates, under intoxication, etc.

And they could have returned to normal, sane lives after being given some counselling by India’s finest psychologists at Bengaluru’s NIMHANS (National Institute of Mental Health and Neurosciences). Courts may have even been large-hearted enough to facilitate this by ordering the director of NIMHANS to do this on priority and report back to them.

No wonder, what is thrown up before us is a tragedy of sorts, driving eight lives and an equal number of families into an abyss.

One precious young life was lost, one committed suicide, one will nurse his physical injuries and emotional loss, and four will hang. What is equally worrisome is how these young people have dragged themselves and their families into an abysmal situation, be it the victim or the perpetrators.

You must be mad with me for writing all this, obviously referring to the ‘Nirbhaya’ gang rape and murder case, which shook the entire country. And if you are mad with me, that was the intention behind this outrageous ploy. It’s worked.

Let’s shift our attention to something that happened in Sonepat, Haryana, on the northern outskirts of the capital about a year after the Nirbhaya case. A student at the private and, if we say so for convenience, elite OP Jindal Global University accused her boyfriend (and campus-mate) of blackmail and serial rape, by him and his friends, at least once in a gang rape situation.

The boy sent her his nude pictures, coaxed her to send him hers, and then blackmailed her, threatening to reveal them on the campus and to her parents. She said this to a magistrate under Section 164 CrPC, in conformity with the tough, new, post-Nirbhaya rape law. It set off a pattern of blackmail, rape, forced alcohol, and drug (probably smoked marijuana) abuse. She said he had blackmailed her into buying a sex toy and using it while he watched on Skype.

The case came up for trial. It was contested vigorously by both sides. Trial judge Sunita Grover accepted the woman’s charges. The three boys were convicted for an assortment of crimes including rape, blackmail, and violating the IT Act, and handed tough, multiple sentences, including 20 years for rape.

The convicts appealed in the Punjab and Haryana High Court. The appeal is currently pending and will take the time that litigation in criminal cases in our system usually does. An example: The convicted dentist parents’ appeal in the Aarushi murder case is pending in the Allahabad High Court since 2013.

Illustration by Binay Sinha

Last week, however, the Bench in the Punjab and Haryana High Court gave bail to the rape/blackmail convicts, suspended their sentence as the judges saw some significant mitigating features in the case although — in fairness — they clearly stated that nothing they were saying in the order should influence the merits of the appeal. Further, they said, since the appeal process in our system took time, it was fair to let the boys go out in the meanwhile, rebuild their lives, and complete their education, even overseas education, after duly taking the court’s permission. They also ordered the boys be given counselling at New Delhi’s All India Institute of Medical Sciences, asked its director to facilitate it, and report the progress to the court. The judges also asked the parents of the boys to help reform and report on the progress.

It isn’t my intention in the least to question the judges’ wisdom. It is clear that they found evidence, drawing from the complainant’s background, conduct, and her relationships with the convicts to take this important decision. No argument there. Fairness and prudence demand that we now wait for the final order on the appeal.

The following are some passages I have picked from the honourable judges’ 12-page order with the help of my colleague Apurva Vishwanath, who knows the law:

• A perusal of the statement of the victim as also her cross-examination reveals a promiscuous relationship and sexual encounters with all the three accused persons over a period of time and at no stage did she ever make any attempt to reveal her mental state to either the authorities in the college or to her parents or her friends.

• She also conceded in her cross-examination that her hostel room was searched leading to recovery of condoms by the Warden, but the parents were not informed in this regard. She further admitted that she used to smoke cigarettes of ‘Classic’ make. Apart from this, she admitted use of drugs but clarified it that it was not by choice. She conceded that the drug which she took was known as ‘Joint’ and the same is smoked.

• The entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world. No wonder, what is thrown up before us is a tragedy of sorts, driving four young lives and equal number of families into an abyss.

• 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 compelling reasons to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut wrenching violence, that normally precede or accompany such incidents.

• The perverse streak in both is also revealed from her admission that a sex toy was suggested by Hardik and her acceptance of the same.

A reading of these, first of all, will explain to you the loaded construction of my first few paragraphs in this article. The words in italics are inspired from passages in this order. My argument is self-explanatory.

Once again, I am not questioning the judges’ reasoning. I’m also not pretending to call out any patriarchy or moralising — not when what we are questioning are easy labels. I am only suggesting greater sensitisation and understanding of adults’ sexual and lifestyle choices.

A viewing of Jonathan Kaplan’s 1988 award-winning classic The Accused, starring Jodie Foster, may be a good beginning. The gang rape victim, played by Foster, is a hard-living working-class woman and a defence witness (played by Leo Rossi) justifies it asking: “Raped? She’s a whore…she f…..d a bar full of guys…she loved it…now she blames others.”

That wasn’t accepted as justification in the 1988 film. Should it be, in real life, in 2017?

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