File photo of Tehelka founder Tarun Tejpal
Sexual assault is not just about the criminal, it's also about the abused.
But this is often forgotten and the abused ends up being "silenced for her own good". This holds true not just for the Khap variety of justice but also in the response of the criminal justice system to rape where the choice of the abused becomes somewhat irrelevant.
In the Tehelka case, Shoma Chaudhury's claim that she was respecting the journalist's choice to file the FIR or not, was seen as a move that shielded her alleged rapist. If the journalist didn't report the crime, those who were in the know were expected to, in order to let law take its own course.
On the other hand, some ignored the need to take the journalist's consent before putting out explicit details of the crime from her mail into the public domain. A petition was soon doing the rounds to prevent any further breach of privacy. Soon these details were splashed on the front page of a leading newspaper.
The Goa police filed a suo moto FIR against Tarun Tejpal and the criminal investigation began. In all these cases, someone else was claiming they were acting or not, in what they thought was "good for the abused".
But how much control was the person herself allowed over her own story? Did she have adequate support, time or the option to decide how she wanted to pursue the case? Measured public outrage is a strong force, it can cushion the abused and help them get justice, but it becomes dangerous when it focuses so much on the criminal that it forgets the abused. Those speaking on behalf of the Tehelka journalist must not forget that the assaulted person this time is an empowered woman, not voiceless and not entirely helpless (unlike in December 2012 when the assaulted woman was dying in hospital).
Rape is a cognizable offence in India, which means the person abused is not required to lodge an FIR.
This takes away the onus of filing a report from the person who was sexually assaulted and therefore protects her.
The criminal prosecution does not really "need" her. If the abused is a minor, in a vulnerable situation or deeply traumatised, this is of tremendous help. It also saves the abused from being exposed to coercion or any kind of pressure from either the offenders or being influenced by anyone to not speak out and ask for justice. But is it always fine to not take the abused person's own position into consideration?
In the Tehelka case, it's not clear whether or not the journalist felt at first that civil action was a better choice for her. Activists who claim they are aware of what she wants say she had opted for civil action. Once the FIR was filed, she said she would co-operate with the police. The question of her "choice" was brushed aside hastily and many of her defenders were no longer interested in what the abused thought would be best for her to be able to "move on". It's probably too late now. Anyone, including the abused, questioning criminal action are likely to be lynched in the public discourse now.
Tarun Tejpal has already confessed his guilt in the letters that were made public. He admits to an attempt at 'sexual liaison' despite the journalist's 'clear reluctance'.
Perhaps without the suo-moto action, the abused would indeed have been pressured to give up entirely. So is this silencing in fact giving her a voice?
Criminal action is designed to punish criminals, but is that the same thing as bringing justice to the abused? If it's "good for society", is it necessarily "good for the abused"? What happens when the abused does 'not' want to take the route that seems better for society? The suo-motu option saves the abused from the burden of filing an FIR, which is great, but if she has to give her testimony and then bear the consequences of court proceedings that don't go in her favour, what then?
There are some who don't want to send their aggressors to jail because they are close or related to them. There seems to be little empathy for this choice. Civil action can be expensive or not get the abused the desired result but the abused should at least get to choose. Is the abused expected to sacrifice her own good for the greater good? If she thinks an apology and financial compensation can bring her more relief , she is highly likely to be seen as dishonest and her position will be judged as immoral. So in the end the onus comes back squarely on the abused.
Raising questions about the response of the criminal justice system to the needs of the person abused should not be equated to attempts at shielding rapists. That would stifle an important debate. That there should be zero tolerance for sexual harassment at the workplace is unquestionable. Too much is at stake in the Tehelka case. It will set a strong precedence.
But a sexual assault is devastating for an individual and shatters their peace. A solution that provides protection to society by punishing criminals doesn't automatically protect the abused person's individual rights. We need to solve this dilemma.
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