Thursday, July 23, 2009

Reporting Rape: A debate on Some Ethical and Legal Aspects

IN THE recent issue Tehelka weekly, my friend and the magazine’s editor-at-large, Ajit Sahi, has written an investigative story on the rape of a few tribal women by Salva Judum people in the deep forests of Chattisgarh. The story reveals a shocking incident, but what was, to me, more shocking was the revelation of the way our official agencies like National Human Rights Commission (NHRC), reacted to it. It appears the NHRC dismissed the allegations that these women were raped, provoking Tehelka to come out with the story, and to prove its point, reveal the names of the victims in their testimony published by them.

This has raised a controversy because revelation of rape victims’ names is against the ethical practices in the profession as also the present laws in the country. Naturally, the issue raised a storm and a debate in which I also had to take a part.

I reproduce the salient points in the debate, courtesy fourth-estate-critique, an internet forum:

N P Chekkutty: So just when did the NHRC convert itself into a trial court? Just when did it become the job of the NHRC to summarily dismiss, without proper investigation, the charges of rape directly brought forward by the alleged victims of that crime?

This question is raised by Ajit Sahi, in his recent investigation into the Salva Judum rapes in Chattisgarh.

I find this detailed report, with taped testimony from the rape victims, quite disturbing. It is disturbing not only because of the serious nature of the crimes committed against them; but it is all the more disturbing because of the way the NHRC (and of course State commissions too) which are supposed to uphold human rights, seem to take a completely different role in this case.

We do have many human rights people here and I would like to ask this question: What to do if the defender itself turns the predator? This seems to be present the case especially since there are reports that our human rights commissions are proving to be asylum for fortune-seekers who demand their pound of flesh for services rendered.

Why not take a hard look at what they are doing?

Bobby kunhu: This is a response to the Tehelka article. Since Mr. Sahi is a part of this forum, I thought that it is pertinent to bring these issues to his attention as well. The transgress mentioned in the below letter is serious and I am guilty of overlooking it as well.

Dear Friends,

Revealing identities of rape victims is against the law, as per Section 228A of the Indian Penal Code (IPC) treats publication of the name of the raped woman or any matter, which may make known the identity of a raped woman as a cognizable offence punishable with imprisonment of up to two years and fine.

It's also against media ethics as laid down by the Press Council of India. According to the Norms of Journalistic Conduct of the PCI (updated in 2005), “While reporting crime involving rape, abduction or kidnap of women/females or sexual assault on children, or raising doubts and questions touching the chastity, personal character and privacy of women, the names, photographs of the victims or other particulars leading to their identity shall not be published.”

Even the NBA's Code of Ethics and Broadcasting Standards (which came into force in October 2008) mentions the need to conceal the identity of victims of sexual violence.

Ajit Sahi: Dear Mr. Kunhu, Many thanks for responding to the piece written by me. I hope you have at least read the piece.

Tehelka is in receipt of such letters from concerned citizens as you have posted here. We will be carrying the 'sample letter' here as well as our rejoinder in our next issue. Let me just share with you here that Tehelka has received support from a wide number of people, including the (female) lawyer for the raped women who is seeking the prosecution of these raped victims in a local court in Chhattisgarh.

Another very prominent social activist, also a woman, who works with these tribal women in Chhattisgarh, has come out openly in support of the story.

I would be grateful if you could actually read the story and revert with your feedback. I am sure that Mr. Chekkutty's valuable commentary on my piece yesterday carries weight with you. Since Mr. Chekkutty has enumerated the facts of the story, I am stopping myself from repeating them here.

NPC: Dear Bobby, I am not going to dispute the points raised by you about the rape reports. The media should strictly follow the guidelines, no doubt.

Though I do not question the credentials of those who are now rising to the defense of the rape victims against media assault, I would like to put forward certain questions before you as you are a well known and erudite human rights lawyer and activist. I raise these issues not to dispute you, but to seek guidance as I, as a journalist who value ethical practices in my profession, am much confused as to how to proceed in complex situations as this one.

Now, what is this report about?

It is not a simple report on rape on a few women. It is much more than that and let me quote Ajit Sahi from his own report:

What happens when rape becomes a brutal tool of class oppression in a wider social, political and economic war that men wage against one another, the raped women merely the pawns on their chessboard, the act of rape itself a side story, a cold-blooded strategy to terrorize an entire population into submission?

I think this is the crux of the problem. It is a political act and what makes it more serious is the refusal of NHRC to take cognizance of the testimony offered by them. So in the interests of justice, is it not necessary on the part of the media to help them come out and testify before the public and that is what they have done here. In such a situation, how do the media become unethical? I think similar situations would arise while reporting crimes of a nature like genocides and mass murder and rapes. There, the letter of the law cannot be taken at face value because what is most important is to uphold the interests of justice.

Bobby: Dear Mr. Sahi & Chekkutty Saab, There is absolutely no question of taking offence and my post was not in anyway belittling the efforts of Ajit Sahi or Tehelka.

I have of course read the piece and I try and keep abreast of what is happening in Chattisgarh and off and on am involved with some of the activities - given the piquant and novel way the State is waging war against the people there. In fact we are on the same page in terms of the reading of the rapes (the paragraph that NPC quotes here) - this is also true of many situations of violence and I am on the same page on the responsibility of NHRC as well - with minor reservations - given that I have objections to the way the body is structured and functions - the statute makes it inherently flawed and why we can see these lapses in the functioning of the body.

Having said so much, I need to point out why revealing the identity of a rape victim becomes a serious lapse and the reason for that is rooted in the nature of crime that rape is. The woman becomes the site of violence - in Mr. Sahi's words - a side story - in social conflict situations because of the way a woman's body is "owned" by the society at large. It is in this context that criminal jurisprudence related to rape world over protects the victim and one of the most important protections offered therein is the protection of identity - given the importance and stigma attached to female sexual behaviour - I suppose this is not difficult to comprehend. In that sense revealing the identity of the victim (however noble the intentions might be) becomes a travesty against decades of struggles by women’s movements world over that got this protection in place, amongst other protections.

NPC: In that sense revealing the identity of the victim (however noble the intentions might be) becomes a travesty against decades of struggles by women’s movements world over that got this protection in place.

Dear Bobby,

Here I have full agreement with you.

But still, I think it is necessary to take forward this discussion because I do feel there may be occasions where it becomes imperative to give out the details and identity in the interests of larger justice, when such revelation of identity becomes a political act, an act of protest, an act of sacrifice to uphold larger issues rather than nursing a mere injury to one's dignity and safety.

As all of us seem to agree, rape is often an act of aggression carried out to force the surrender of a victim, to dehumanize them, to declare the victory of the assaulter/aggressor not only on the person but also the society/community to which she belongs. Here she represents the hapless society/community rather than being an individual. Hence her trauma is the trauma of an entire community. And the justice becomes not a personal need, but a social imperative for healing.

There are very interesting studies on this aspect of a woman being seen the symbol of society/community's honour in such situations of tension. This is a highly parochial view of womanhood but still a historical and contemporary reality. Hence, in such situations the struggle for justice for a victim of rape becomes a struggle for restoration of honour of a society/community at large, facing aggression.

Now let me try to explain my point with another example:

No serious media/news-person gives graphic pictures of frontal nudity. But when a group of women in North East came out in nudity in protest against the Armed Forces committing rape on their girls in Manipur, what could a media-person do? To look at the other way and say that it was ethically wrong on his/her part to picture nudity in public space? Or capture this terrible image and tell the whole world, look this is how things are in this place?

I know some newspapers in Kerala habitually add dress to a beautiful tennis player's legs because the original picture is repugnant to their sense of modesty. But I know they are people with a very curious sense of modesty and they are, to my mind, steeped in a decadent, patriarchal social mode. If they had to use that famous picture from Viet Nam war, where a girl is caught running away from bombs in nude, perhaps they would put it on photoshop first and dress her up properly even as the bombs explode!

But I write this not to defend Tehelka or their decision to publicize the names of these women. However, I find the campaign that you have mentioned here quite interesting and a bit disturbing. They have nothing to say about the objective situation in Chattisgarh where these women seem to have been forced to come out in the open, where a social reality seems to have developed that personal dignity/shame, etc, are to be subsumed before the necessity to fight for justice, at whatever cost. Perhaps, that is why even the lawyers and social activists in the field (who may be aware of the legal position vis a vis revealing identity of rape victims) do seem to support the expose against NHRC and the looming presence called the State in its most terrifying aspects.

Bobby: Dear Chekkutty Saab,Let me clarify, that mail was sent to me by someone who has been involved in efforts to expose the state role in Salwa Judum and many people who have endorsed the letter are people who are involved in the protests against the state action in Chattisgarh and shares your angst about the role of NHRC - I also know this person to be a very committed activist. Of course others might also piggy back to score a brownie point against Tehelka.

So this is not without reference to the situation in Chattisgarh. This operates at multiple realms and these realms to my mind are not mutually exclusive. On the contrary, I think it is possible to build a campaign/write about an issue, etc, in an inclusive fashion. I don’t think this protest on revealing names is about "women seem to have been forced to come out in the open, where a social reality seem to have developed that personal dignity/shame, etc,". I think it is possible to carry on the fight for justice in C'garh without revealing the names of the victims - there are multiple ways of doing it. (Neither do I think it is a question of modesty). The nudity against AFSPA was a deliberate act of protest - while these women were raped - it was against their will - and I do not think it is too much to expect news magazines like Tehelka to be aware of these discourses that have been happening in the public realm for quite sometime.

NPC: I think my areas of differences with Bobby in this issue seem to be narrowing. I was arguing from the outset that legal dictates cannot be the final arbiter in journalistic decision-making. If editors are going to take the words of lawyers as final, I do think the best of reporting of modern times including the Watergate and Pentagon Papers would have never been there. So the decision on whether to report-- and whether to name names-- or not rests with the editor.

In the present case, I would go by what Bobby says, that the situation in Chattisgarh does not warrant such a breach of legal norms by Tehelka. I am so far away and I can't have any other view. But Tehelka can always differ on it, I suppose. But I was more concerned about the principles behind it, as a person who has to agonize often whether to publish or not. I would always go by my own conscience or inner voice as Gandhi would describe it, in such situations whether there is a campaign for or against.

Bobby: I really do not think we have serious differences on this issue. I do not think that law should be an arbiter on any form of expression, journalistic or otherwise; nor do I believe law to be static - why the importance of judge-made laws in common law jurisprudence. In fact interpretations of laws are often arbitrated by social morality - very often also dictated by media - in that sense, I really do not see the need to disclose the identity of the victim - unless there is some empowering advantage that comes to the victim by such disclosure (which does not look likely in this story.)

Sashikumar Kurup: Just a question, not to be interpreted as disagreement or evidence of any expertise. Sometimes the disclosure of name and photos of the lady, has a marked effect on the readers. It brings home a point vehemently. The authorities fear such disclosures. It also lends veracity of credibility to the news, else the government could easily disdain it as a made up story. They cannot do that when real people with names of addresses are involved. Of course the disclosure can be
made after obtaining the consent of the victim in a case that has social ramifications and is not an isolated act of depravity. It is also possible that such publicity can embolden the lady to pursue legal and social action with more confidence in the support of many,and ensure her safety and security better than what anonymity would have ensured. The perpetrators may find it easier to threaten an
anonymous person than somebody whose case has been an issue in the active public domain.

NPC: Dear Dr Sashikumar,

I am glad that you have raised this point.

As you can see my point has been that the legal position that the names of rape victims should not be disclosed cannot be taken as a sacrosanct rule that applies to all times and all circumstances. There could emerge, in real life, situations where the disclosure becomes a need, may be even a responsibility, in the interests of

Such a situation can arise when rape is undertaken as a social act, a political act of aggression, and the victim is not just a victim,but a site of social and political invasion. Then the fight for justice becomes a social and political battle with wider ramifications and in such situations the victim might decide to come out into the open to fight not for the self but for the entire society. Such a decision
naturally entails braving adversities, like public humiliation, shame or insecurity or whatever.

That is why I raised some objections to the ongoing campaign against Tehelka as the petitioners do not seem to look at the larger social context in which these rapes were committed. They take a purely legalistic and mechanical view of the situation and thus, inherently,act as camp followers of those forces who are committing this act of aggression. This is what I could see but I am willing to be corrected if they are able to provide firmer evidence why they do think these
women have other, normal and routine means to get justice; that their choice of this extreme act was not warranted under the objective conditions prevailing there. It would be wrong to think the Tehelkaor a person like Ajit Sahi, who has been in this profession long enough to know the ethical positions in this case,decided to
disclose the names without deliberations; I do feel the decision was quite conscious and informed by a sense of social responsibility. If,in the event that Tehelka acted on its own and without knowledge or permission from the women concerned, I think the petitioners should take it up and sue the paper and its editor and reporter in a court of law.

Jayasankar Peethambharan: As a lay person, I think that the media can/should 'break' laws for the greater good. In a way, similar to their right to not divulge

My personal view is that this case fits that exception. I am sure that there will be many who don't agree with this. I read something yesterday by a doctor friend on 'informed consent' and its complications and am stuck by the parallel. In the end I think the primary factor is the 'informed consent' of the woman to divulging her identity. And that word itself is a swathe of grey than black and white.

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