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Posted by Uttanshi Agarwal

The lack of trauma-sensitivity within the judiciary was recently displayed by the Araria District Court in Bihar where a gang-rape survivor, along with Kalyani and Tanmay – two other members of Jan Jagran Shakti Sanghatan (JJSS), the NGO that she is associated with and has been supporting her, were charged with contempt of court and imprisoned. Although the survivor has been granted bail, her companions continue to remain imprisoned. Contempt proceedings were initiated merely because the complainants sought to receive clarification from the judge about what was said given that his mouth was covered with a handkerchief. According to the account of the survivor published by  Article-14, instead of repeating what had been said, the magistrate burst into a temper saying: “Pagal, badtameez ladki. Tumhe kisi ne tameez nahi sikhaya hai!” (You mad, ill-mannered girl! Nobody has taught you manners!). 

She said the magistrate and his staff did not let her or her two companions speak and in the end demanded their arrest because “all three have been arguing with me for the past five minutes”. While the officials claimed that Kalyani and the gangrape survivor got angry and tried to tear the latter’s statement, she denies the same.

Judicial systems, as they stand today, can exclude and minimise the survivor’s autonomy greatly, equating their concerns as paranoia, or in some cases such as this one, a display of disrespect for court proceedings. Instances such as these multiply the barriers that survivors may face while accessing already inaccessible formal justice systems.

Also read: Karnataka HC Judge’s Remarks On Rape Survivor Reflects The Sexism In Indian Courtrooms

The recent Karnataka High Court bail order brought to light an instance where a survivor of rape was revictimised at the hands of the criminal justice system. After the stereotypical, misogynistic and patriarchal order received flak for placing an undue burden on survivors of sexual abuse, Justice Krishna Dixit, expunged the parts of the order where such unwarranted remarks were found. Although this order received a huge amount of attention, there are several such orders and judgments which have been passed limiting the responsibility of the abuser by focusing on the conduct, both past and present, of the victim in the case. There are many biases attached to survivors of sexual offences in India which are routinely propagated by the highest of our courts. Cases heard by courts are often adjudged from the lens of a dominant class, dominant caste male who may lack the intersectional and trauma-informed understanding of the facts of the case. Instead of being able to engage with the cases on an individual level, the law often tries to enforce a sense of objectivity to arrive at the final verdict. This order of the Karnataka High Court highlights the need for us to move away from a relatively well-known legal standard – the reasonable person standard.

The adoption of a ‘reasonable woman standard’ indicates that women are inherently unreasonable and therefore require a standard that is separate from the universal standard in order to respect their sensitivities rather than accounting for the need to recognise lived realities of every individual, of every gender. Image Source: Arpita Biswas/Feminism in India

What Is The Reasonable Person Standard?

Within the judiciary, there is a huge scope for the judge’s individual biases to reflect in how they perceive the facts of a case. In order to reduce the scope of this subjectivity, a common standard of conduct was designed by the judiciary in order to ensure that there is objectivity in the decision-making process. This standard commonly came to be known as the “reasonable man standard.” Here, the liability of a person is determined by comparing the circumstances of a case against a hypothetical situation and the way in which a hypothetical person may react to it. The hypothetical person, in this case, is a person with average care, skill and judgment. The need to shift from calling it the reasonable man standard to the reasonable person standard was felt considering that it did not adequately represent the fact that it would apply to all persons, irrespective of their gender.

The adoption of a ‘reasonable woman standard’ as a separate standard by itself is problematic. It indicates that women are inherently unreasonable and therefore require a standard that is separate from the universal standard in order to respect their sensitivities rather than accounting for the need to recognise lived realities of every individual, of every gender.

This standard of reasonableness is generally applied to cases of personal (civil) injuries and not necessarily to criminal cases. In cases of sexual violence therefore, the standard gained prominence in cases of workplace sexual harassment which, in essence, pertain to a civil wrong. The reasonable person standard was altered to be referred to as the “reasonable woman standard” in a landmark US judgment which focused on the individual and subjective perception of the victim of sexual harassment and not on the universal constructions of what was considered reasonable. This was also adapted in the Indian context by a 2010 judgment passed by the Supreme Court of India. Of course, the adoption of this separate standard by itself is problematic. It indicates that women are inherently unreasonable and therefore require a standard that is separate from the universal standard in order to respect their sensitivities rather than accounting for the need to recognise lived realities of every individual, of every gender. It also normalises sexual harassment as an unintended act on the part of the harasser and packages the grievance of the survivor as an expression of unique sensitivities of a particular gender being harmed. 

The reasonable woman standard was devised with a good intention – to highlight the inherent differences in the experiences that men and women may have and to address them equitably. Similar to cases of sexual harassment, the test of reasonableness is applied to criminal cases as well. It is used to determine whether the victim contributed to the act in any way. This standard therefore places the onus on the survivors to act in a way that is popularly perceived to be reasonable – something that may not resonate with the survivor immediately. What makes the standard dangerous is that ‘reasonableness’ is often judged from the point of view of a dominant caste, class, cis-heterosexual male – a person who is statistically, much less likely to be subjected to gender-based violence. This practice holds ample space for judges, lawyers and the law enforcement agencies to re-traumatise the survivors by scrutinising their character. Observations made in cases of rape and other forms of sexual violence often carry moral and judgemental undertones making the formal legal process highly inaccessible. In other words, the reasonable woman standard in criminal cases focuses on identifying an ‘ideal victim’ (see Nils Christie) of sexual violence by examining their identity, response and conduct after being subjected to sexual violence.

The reasonable woman standard in criminal cases focuses on identifying an ‘ideal victim’ of sexual violence by examining their identity, response and conduct after being subjected to sexual violence.

Inefficacies Of Any Reasonable Standard

The test of reasonableness – by whichever name called – restricts the way in which the facts of a case can be evaluated. The danger of this standard was put forward most eloquently by Usha Ramanathan, an Indian human rights activist who highlights the potential of such a standard to normalise violence, albeit in the context of matrimonial relationship. She says, “The reasonable man gets married and gets a dowry for it. Maybe he marries again. He chastises his wife in moderation, perhaps with small beatings. But he doesn’t cut his wife’s nose.”  

At the heart of the argument in favour of moving away from such a standard are three main observations – one, that the standard universalises the experience of all survivors and brackets their responses into acceptable and unacceptable. This takes away from the subjectivity of the crime, restricting their experience and response into reasonable and unreasonable. Second, it shifts the focus away from the wrongdoer and places the onus instead on the survivor and the survivor’s actions. This may make the experience of accessing the criminal justice system retraumatising rather than one that is transformative and healing for the survivor. Third, it breaks away the instance of violence and separates it from the larger contexts of intersectionality, power dynamics and stereotypes that perpetuate such violence and treats it as an individual incidence of crime. It fortifies the existing barriers to justice that survivors may have had to overcome in order to access the formal legal system in the first place. 

A characteristic feature of sexual violence and the trauma that may ensue is its subjectivity. Each person’s response to trauma can be markedly different from another, irrespective of the similarities existing within the crime. Response in the face of threat and danger initially involves the part of the brain referred to as the amygdala. Accordingly, the victim is likely to respond in one of five common ways –  befriend, fight, freeze, fright or flop. A phenomenon known as disassociation is often what overtakes the victim, rendering them incapable of responding in ways which are considered to be ‘most natural’ by third parties. The standard of reasonableness seeks to exclude this subjectivity and pressurises victims to justify actions undertaken by them in the background of the trauma they may be facing. 

Each person’s response to trauma can be markedly different from another, irrespective of the similarities existing within the crime. The standard of reasonableness seeks to exclude this subjectivity and pressurises victims to justify actions undertaken by them in the background of the trauma they may be facing. 

Also read: A Dalit Woman’s Body In The Indian Courtroom

An exercise in using and applying the reasonable woman standard is an exercise in finding commonalities where there are none. There is an urgent need to shift from focusing on the conduct of the survivor to meeting and fulfilling their needs in order to make the justice system more accessible and inclusive. As long as the justice system fails to account for and respond adequately to the trauma and needs of the survivor, the gap between the two will continue to widen. While there is a need to be objective, this objectivity should be applied to how and what kind of evidence and line of questioning is being allowed. Instead of trying to find commonalities amongst survivors of gender-based violence, it is important that courts instead begin focusing on the individualistic nature of the crime along with the facts and circumstances of each case. This will make room for the objectivity of the decision making process along with the subjective experiences of the survivor. The value in this practice is best displayed by some judgments which reflect the intersectionalities at play, the power dynamics between the parties and the trauma that the survivor may be facing. Even though imperfect, these are definitely moving in the right direction. 


Featured Image Source: Aasawari Kulkarni/Feminism In India

Uttanshi Agarwal is a lawyer and the Senior Program Officer at One Future Collective. She has a keen interest in the intersections of conflict, gender justice and human rights.

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