Not immoral character, but truthfulness challenged in Tarun Tejpal judgment

tarun tejpal police arrested

The judgment by Additional Sessions Court Judge Kshama Joshi in the Tarun Tejpal case has the media presenting the judgment as misogynist and an assault on the victim’s character. There is outrage that sexual history is not to be used as evidence of a victim’s immoral character and to imply consent and many who either do not appear to have read the judgment or do not like its conclusions are creating a perception that the judgment did so. I have read the judgment and while I am not a lawyer, the judgment did not come across as judging the victim for her sexual history.

Sexual history as consent is not even relevant here as the defense for Tejpal is claiming nothing happened in the lift for there to be a question of consent. Nor did the judge make conclusions even remotely related to sexual immorality – unless you count dishonesty as a character judgment.

It was not the victim’s moral/sexual character under attack, but her truthfulness overall. Her truthfulness at every point was be questioned, and it was required to stand to questioning, as a conviction was expected on the basis of it being of sterling quality.

Discussing the case with ordinary mortals, the amount of sexual evidence when discussing a brief duration of time and that too at a working event, including discussions of a sexual experience while on duty at the same event in the previous year was provocative. Whether as outrage by the feminists and media, or as moral judgments (not yet come across any) or even a suprised “that was NOT what I expected” or “I am jealous” in casual conversation.

The judge does not so much as blink as to all that and manages to look at the evidence in a perspective strictly limited to the context it was presented without inference beyond it. She looks at it matter-of-factly, and scrupulously does not make any comment on her sexual activity or even treat it differently from other evidence, which is also described in the judgment.

WhatsApp chats of an intimate nature

She recognized extensive WhatsApp chats as intimate without getting into their contents in the prosecution proving that the victim lied in claiming to not know the witness well. This was very damaging to the case, but not as a judgment of sexually immoral character. It was damaging because it proved that the victim was lying when she claimed to not know him well.

Testimony of witness excluded by prosecution

This was the first person to meet the victim after the alleged assault and mentioned in an early version of the victim’s narrative and later excluded. The investigating officer too excluded this witness in spite of him being the first person to see the victim after the alleged assault. The victim claimed to not know him very well.

His testimony did damage to the victim’s case that was entirely preventable. Extensive chats between them showed that they had been intimately involved (as mentioned in the previous point). His testimony contradicted the victim’s accusations, as he described her as being happy and excitedly telling him about flirting with the accused. Essentially this then becomes the victim’s first version of events that was deliberately excluded by both victim and investigation, presumably because it did not suit the prosecutors case.

This would have been entirely avoidable if the victim had been truthful and investigating officer had done her job, in which case they could have claimed that the victim was lying under the influence/pressure of the accuser. It is her own lies that damned her.

Sexual banter and more sexual evidence

The defense for Tarun Tejpal claimed that the apology had been for “drunken banter” that was of a fairly explicit nature that happened before getting into the lift. The victim had omitted this from all versions of her narration of events leading to the alleged sexual assault, but it is corroborated by her own dismissive comments in response to his mention of said banter.

Tejpal claimed that the conversation was sexually explicit and involved her describing a sexual encounter between the victim and another celebrity she was chaperoning in the previous year, her attraction for him and her declaring that with her boyfriend living far away, fidelity was difficult.

The prosecution managed to substantiate all this as plausible by showing that she had shared that graphic anecdote with others (resulting in repeated mentions), she had disclosed feeling attraction toward the accused before the alleged rape, and that she was spending time with another boyfriend after the event. None of this is a moral judgment on her sexual activity, but evidence toward the claims of the accused’s version of events and the contents of the drunken banter.

Ideal sexual assault victim

Judge Kshama Joshi is being blamed for commenting that the victim did not look traumatized and other such statements with sarcastic accusations of the victim being compared unfavorably with some fictional ideal sexual assault victim. It did not come across as that to me.

The victim testimony has made several claims of impact on her like blinking back tears, traumatized, long phone calls to her boyfriend and so on. Evidence of her behaviour after the alleged assault contradicts this, not some fictional ideal sexual assault victim. “She does not look traumatized” means “She claimed to be traumatized, but like other claims, there is no evidence of this one either”

Yes, it can be argued that trauma is not always visible. But the problem is that this invisible trauma also comes with other verifiable aspects of her testimony not matching available evidence. Is it possible for a deeply traumatized victim to put on a bright face and party and act like nothing happened? Not only is it possible, it happens often too. Think of the statistics and research on domestic abuse and marital rapes in the country and how many women you see going around looking traumatized. With the high prevalence of domestic abuse and marital rape, chances are that some percentage of women you know, who appear identically normal as others, are actually suffering on a daily basis and you cannot tell from a simple visual scan which ones those are for most of them.

The problem here is that this normal, indeed cheerful appearance that may or may not cover trauma is consistent with the evidence as well as consistent with the victim’s claims contradicting various testimonies and evidence at a time when her truthfulness is under scrutiny. On its own, it doesn’t mean much, but combined with other inconsistencies, it is a cause for skepticism.

The prosecution did a good job of demolishing verifiable aspects of her testimony enough to make her claims regarding the unverifiable parts unreliable.

Yes, a good part of this was done with content that had sexual context, but there is plenty of non-sexual content described in similar and somewhat tedious detail (think red button in lift) that also contradicts her claims. It is not like the other content supports what she says and only the sexual content that was unfairly used by the judge that is the problem as media would like you to believe.

Does this mean the victim made a false accusation

The judge appears to conclude so. I am not so convinced. Something definitely happened that caused the victim to initiate this elaborate chain of events (that quickly spiralled out of her control and took on a life of its own). Something did happen to make Tejpal feel guilty, which is undeniable from his apology. Even under duress, the choice of words is still his. It is hard for me to believe that a man would step down from the organization he built from scratch over an accusation that is entirely baseless. A completely innocent person would damn how it appears and fight back.

Even to do it to save the dignity of the organization he loved or under pressure by those committed to women’s rights, there had to be something to investigate. Whether it was sexually explicit drunken banter with an employee or a rape or something in between. For example, many women who talk explicitly about sex encounter men who presume that they are interested in sexual flirtation with them and proceed to say inappropriate things.

Whether that accusation was an actual crime as per law is a different matter. There are countless infuriating men who have technically not done anything they can be arrested for beyond being obnoxious, inappropriate or hurtful etc. Whether it can be prosecuted successfully as that crime is a still different matter, because in a court, the issue is what can be proved or at the very least consistently claimed in a manner that stands to scrutiny – which there WILL be. It is not justice to sentence someone on the basis of an accusation that can’t be questioned.

Other facts of disadvantage to the victim that are not being discussed include:

This was unlikely to be Tejpal’s first experience with the judicial system and he was clearly aware of the value of consistency of statements from the start. The drunken banter, the demand for CCTV footage…. things said very early on as first reactions have stood the test of proving with evidence and made it to the judgment with no contradictions. Either this is an exceptionally honest man or one with years of experience being precise with his words or both.

In contrast, the victim is much younger and for all the claims of expertise in reporting sexual assault, clearly unfamiliar with the actual procedural aspects of it. Not filing a police complaint immediately (and lying about fearing police), refusing a medical test (and “not remembering”), telling her side of the story repeatedly to different people and in writing that does not match on details… For example asking the color of underwear and pulling it down and inserting tongue and fingers into vagina are ENTIRELY DIFFERENT things. The underwear being omitted early on and added later could still be explained as her feeling awkward about talking about those details but this was a very specific detail that was replaced by a worse detail. This could be because it was a false accusation as the judge interpreted it or it could be simple inexperience substituting a traumatic detail with a fictional and less humiliating one in the initial telling without realizing the legal implications of it.

Similarly with minimizing her acquaintance with the witness if she was aware that he would not support her. It could be innocent to exclude him seeing him as unsupportive, but the exclusion appears to be a deliberate manipulation when he later testifies in contradiction to her narrative. Or her outrage causing her to add or omit detail in an effort to convince the listener of the gravity of her injury, generating endless contradicting proofs against herself that hindered her credibility. Even before the case hit the courts, she had no chance of her testimony being considered solid, and it was questioned on inconsistencies from the start by a few who got shouted down as rape apologists.

I disagree with the judge about her receiving advice on improvements etc from senior lawyers like Indira Jaisingh. I don’t think she discussed such improvements with them, because they would have immediately advised her of the risk of altering her testimony after it was on record. These look like the mistakes of someone without experience regardless of whether the accusation was true or fabricated. It is also natural to seek the advice of lawyers, but how a lawyer thinks is very different from a lay person. A personal example here, when I decided to take action against an ex-partner, the first thing I did was call friends who were lawyers for advice. Unfamiliar with the system in spite of over a decade of supporting women’s rights, my natural first questions were “how to do this” “where do I start” – a lawyer seemed like the logical place to start. Unfailingly, all the advice I got involved filing a complaint and being as accurate as possible regarding all relevant details and that the case will be on the basis of that. Not a single lawyer gave advice like “saying/changing/adding/omitting something like this will make your case stronger” etc. Someone like Indira Jaisingh would know that she would be cross examined. What a lay person doesn’t expect to account for in a court would not be news to a lawyer.

While seeking legal advice without intention of filing a complaint may seem suspicious in hindsight in a court and combined with organized dissemination of the apology she obtained, it could simply be a matter of considering all options and deciding to get an apology from Tejpal and expose him publicly because filing a case seemed too complicated for what she could prove. From there things mostly spiralled out of her control. The case was brought to a court because of Goa government and not her. The person from NCW contacting her too was natural given the media furore and not necessarily something preplanned in order to prosecute Tejpal. I don’t think any lawyer would advise her to publicize accusations in media before going to court.

However, blaming the judge is not going to alter what happened, and the record gets unwieldy for her going forward. In my view, those who are actually interested in the victim’s interest need to dial down the blame games and get real and learn from this rather than create agitated momentum that increases the stakes for her. What do you think will happen to her credibility if the prosecution fails to make the case in High Court as well? If it succeeds, it will be its own proof. This is a time to create understanding about the distinction between the truth and what can be proved and for god’s sake unhitch the credibility or judicial prospects for women at large from one specific case that wasn’t proved by the prosecution in a Trial Court. Plenty of cases are.

To the women declaring that they will not file a complaint if they get raped because of this case, all I can say is that this is exactly what the victim did, so it is not clear whether they want such a result for themselves or would like to avoid it, because this victim’s chances would have improved dramatically with an immediate complaint. The police would be among first witnesses and they are trained to record and repeat evidence for cases, unlike her friends whose statements ended up contradicting each other and her on the circumstances of her informing them of the alleged assault. Even if medical tests did not result in evidence of injury, it could have resulted in other forensic evidence say… for example DNA or hair on the inside of her dress, where it had no business being. Who knows what could be found, but not filing complaint eliminated all possibility of anything being found and combined with the rest of the story starts sounding deliberate because there was nothing to find. In contrast, immediately seeking justice would demonstrate that there was a problem from the start. Even if no evidence was found, it would bring consistency to her testimony and I sincerely ask all women, indeed any victims of any crime, to immediately appropach the police if you believe you have been assaulted. Do not go by media theatrics, it is in your best interest to be on record at first opportunity and using every possible way to collect evidence and strengthen your chances of getting justice.

Stop ridiculing a judge with exaggerated and false accusations because you don’t like the verdict. Stop pretending that all women will face character judgments and misogyny and that the courts cannot be counted on because the verdict contradicted your decision made in 2013. Nothing useful is achieved by making women feel like they cannot seek justice just because prosecution failed in one case. “Look, the feminists themselves are saying it is hopeless to seek justice.” harms women.

If the judgment is inappropriate, the High Court will look into it. It is already being challenged. This is not even close to the final word on the subject. What precedent is set in Trial Courts that this becomes a precedent for future cases? A little reality and less melodrama would benefit everyone.

In the grand scheme of trauma that befalls women at the hands of men, this is something that is such a fleeting blip in a story littered with devastated lives, permanent injuries and deaths, that saying things like women should not seek justice because of this one case puts your ego and its frustration above the interests of countless women who deserve wise guidance and robust support to seek justice.

This is not women’s rights, this is a childish tantrum.

Note: I suggested the creation of a document or article with learnings and insights for women who may have to seek justice against an accused with flimsy evidence. What can we learn about what to do and what to avoid so that other women may be spared her situation? So far, no takers. I am still collecting points for my version but I will make one.

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