“In that moment, it felt like I was already dead”
1. Introduction
While Netflix’s infinitely controversial ’13 Reasons Why’ has been tagged as a show involving teen suicide, it could also be viewed as a persuasive indictment of rape culture. Its plot centres around Hannah Baker, a teenage girl who decides to end her life. Over the course of the 13 episodes, the viewers witness the protagonist being sexually objectified by her classmates, sexually harassed on social media, stalked outside her home, sexually assaulted in public and raped at a house party. While the show received severe criticism from educators and mental health professionals, who claimed that it glamorizes suicide, it effectively brings out the reality of the persisting rape culture in our country. Distorted interpretations of 'consent’ while deciding rape trials have been persistent in India for a fairly long time, which, to a great deal, explains why there are nearly 90 rapes happening each day in the country. On account of such stereotypy-ridden judgments, orders or remarks, the judiciary has, on several occasions, failed to provide proper justice to rape victims. Stereotypical notions such as utmost resistance, past sexual conduct and leading a ‘respectable’ lifestyle have regularly been employed by the judges in deciding cases. While there have been significant amendments in the laws pertaining to rape and sexual assault, to date, instances of such stereotypical notions harboured by judges are often brought to light.
2. Stereotypical Notions of ‘Consent’
2.1. Short dresses: Implied consent?
In episode 12 of Season 1, the viewers witness a horrific sequence of misery and trauma, when the show’s primary antagonist, Bryce Walker, commits rape upon Hannah in a hot tub. While Hannah doesn’t explicitly utter the term ‘no’, her actions make it evident that she did not want to participate in the sexual act. Before Bryce held her down with brute force, she made 2 failed attempts to get out of the hot tub. However, during the act, she did not resist but rather lay lifeless in trauma and exhaustion. In a later scene, when the protagonist, Clay Jensen, went to confront Bryce about Hannah, he asserted that since Hannah got into the hot tub, without a suit on, of her own volition, she herself wanted to get intimate with him.
The debate as to whether short clothes are an open ticket to rape has been going on for decades and seems to be here to stay. In a recent case, a Kozhikode district and sessions court granted bail to the accused, on the ground that since the victim had worn a ‘sexually-provocative’ dress, Section 354A of the Indian Penal Code (IPC), which criminalizes the act of using force against a woman with the intent to disrobe her, would not be attracted. Within barely a few days, there was a large public outcry and a plethora of legal sources that highlighted the flawed pronouncement. Even in the 21st century, an era supposed to be thriving in education and equality, several people claim that women wear short dresses to incite men. Such people, who still seem to have not gotten over the pre-colonial era hangover, fail to decipher the thick line of difference between ‘stylish’ and ‘slutty’.
2.2. The ’perfect’ rape victim
While it is true that the question of whether the victim consented depends upon the facts and circumstances of the case, the following phrase needs to find its place in the minds of people in power: ‘Not saying an express ‘no’ does not mean a ‘yes’’. For instance, in a 2017 judgement by the Punjab and Haryana High Court, the reasons cited by the court for suspending the sentences of the accused were ridden with stereotypy and misogyny. Grounds taken up, such as the victim not confiding in her parents despite visiting them in the immediate aftermath of the incident, having admitted to having consumed alcohol and drugs and having had a life comprising casual relationships and adventurism in sexual encounters effectively paint an image of ‘the perfect rape victim’.
Ratna Kapur, an acclaimed professor, rightly stated that in order to receive justice, the woman must essentially be “honourable, monogamous, pure, chaste, and confined to the domestic sphere”. It is imperative to draw parallels with the cases of Hannah Baker and the show’s secondary protagonist, Jessica Davis, in ‘13 Reasons Why’, in light of the aforementioned statement. Hannah had not been a virgin when she was raped by Bryce. However, as she admitted to one of the show’s main characters and her good friend, Zach Dempsey, she wished to lose her virginity to someone she liked. By losing her virginity to someone consensually, she most certainly did not throw herself open to being violated by anybody else. Similarly, Jessica, when she was raped by Bryce, was heavily inebriated, on account of which she wasn’t able to apply proper resistance.
In a more recent and hair-rising judgement, the Karnataka High Court granted bail to the accused, primarily on three grounds. Firstly, the victim did not inform the authorities about the incident in its immediate aftermath. Secondly, after the incident, the victim, instead of acting in the capacity of ‘the perfect rape victim’ by being utterly distraught, fell asleep. And finally, upon being offered to have drinks by the accused, she did not resist. Based on similar lines, the Supreme Court passed a judgement in 2016. The victim herein, in the immediate aftermath of the incident, had stayed back at the place of occurrence and had enquired about the accused, which, according to the court, was not the kind of emotion that a rape victim would usually display. By making such observations, courts effectively draw a demarcation between a ‘traditional Indian woman’ and a ‘woman harbouring Western traits’, where while the former is to believe, the modus operandi of the latter would cast serious doubt on her testimony.
In ‘13 Reasons Why’, Hannah’s story came to light only after she committed suicide. Jessica, too, was able to have Bryce convicted only after being routinely encouraged by her friends and family. Rape, even today, is considered a social taboo, not just in the rural arena but also in several developed states. Because of the fear of being judged, blamed and harassed that may add to their mental trauma, the victim often finds it hard to come out of her shell. Taking such silence as proof of ‘consent’ is not only absurd but also a marred blot upon one of the most important pillars of democracy.
3. Conclusion
Katherine Langford’s ‘Hannah Baker’ and Alisha Boe’s ‘Jessica Davis’ might be fiction, but their characters echo the voices of thousands of real-life women, who came up with the aim of having their rapists held liable, only to be denied justice on account of stereotypy. It is not the girl who needs to be questioned; it is the rapist who needs to be. No matter how stringent the laws of rape are made, if the judge is consumed by stereotypy and misogyny, justice is bound to be denied.
By:
Vedant Saxena
Student (4th year)
Rajiv Gandhi National University of Law, Patiala
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