On the night of April 26, as Vijay Babu, a Malayalam actor and film producer, goes online on his Facebook page, he decides to name a young woman who is filing a sexual assault complaint against him. It was not a slip, not an accident. Vijay Babu said he wanted to name the woman – a new player in the industry – because her name was already there and he just didn’t think his was not. He knew it was against the law, he said, and was prepared to face the consequences. Comments posted under his video supported Vijay, supporting his claim that if an “innocent man could be dragged into the open”, the woman who accused him could also be dragged into it.

While on the one hand victims of sexual violence are often interrogated for not having spoken earlier, studies showed that when abuse is revealed, survivors are those who encounter negative social and community reactions, which include victim blaming, encouragement of secrecy, and condescending behavior. Women who named their alleged attackers in the Me Too movement also speak about loss of work opportunities, loss of relationships and lasting isolation after speaking out publicly. It is in this context that the law – prohibiting the naming of the victim or survivor of a sexual assault – exists. “It is there considering the Indian social reality, where the woman who is [sexually] attacked is stigmatized. In this context, sexual assault is considered shameful for a woman even though she is the victim. A provision on the anonymity of victims was introduced into the law precisely for this reason,” explains Manu Sebastian, lawyer and founder of LiveLaw.

One would assume that people would run away from the accused, but in all cases of sexual assault, it is the victim. [or the survivor] which is being avoided, says Nagasaila, a barrister at the Madras High Court.

Section 228A

The two lawyers also point out that anonymity promises some protection for survivors to come forward and press charges. Section 228A of the Indian Penal Code addresses this issue and prohibits disclosure of the identity of sexual assault survivors. “Vijay Babu should be prosecuted for the offense and another FIR registered against him,” Nagasaila said.

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“It (naming the survivor) was done very deliberately and the intent is very clear. He did not unwittingly release the name. He came out with a very clear intent to shame the survivor, knowing full well that a victim or survivor of sexual assault faces social stigma,” said Nagasaila.

“It is the accuser who suffers”

In his Facebook Live video, Vijay Babu claims that he is the victim in this case, and goes on to say that the survivor had messaged him over the past few months. He further says that it is not fair that she is not named when he was named and continues to reveal her identity and the movie she worked in with him.

“What’s unfair about protecting the identity of survivors? asks women’s rights activist Kavita Krishnan. “It is an allegation and the facts are in the public domain. What is this assumption that every time a sexual assault case is filed, it’s wrong? I want to know which case is considered true? »

“When has the defendant ever suffered any consequences?” It is always the accusers who have suffered. The defendant will have practically no negative consequences on his career, his loss of privilege is nil. Yet they complain because of the one thing the survivor achieves by telling her story – that there will be people who will believe her. On the other hand, for each stranger who comes to support her by saying that he believes her, there will be a hundred others who will call her a bitch and accuse her of lying. In this case, the defendant knows that nothing will happen although he is breaking the law,” Kavita adds.

The law has gotten stricter over the years, and the Supreme Court ruled in 2018 that even a deceased victim of sexual assault cannot be named. “This happened in the Nipun Saxena v Union of India case of 2018,” says Manu. The judgment says, “No person may print or publish on paper, electronic, social media, etc. the name of the victim or even remotely disclose facts which may lead to the identification of the victim and which should make his identity known. to the general public. »

It also adds that “in cases where the victim is deceased or insane, the name of the victim or his identity must not be disclosed even with the authorization of the next of kin, unless there are circumstances justifying the disclosure of his identity, which will be decided by the competent authority, which, currently, is the judge of the hearings.

The argument for naming a defendant in a sexual assault case if he is in a position of power – even if there is not yet a formal complaint against him – was also a premise for the Me Too movements. As the criminal justice system fails to provide relief to survivors, the Me Too movement was a way for many to tell their stories on their terms and, independent of criminal prosecution, warn others about suspected stalkers.

However, there is also a perspective that the name of the accused should be protected unless otherwise made public in the course of a legal action. Journalist Kalpana Sharma, who holds the post, says until a survivor files a complaint against someone, they should not be named. “I often worried about people accused in riots and other similar cases, where they are arrested by the police and immediately their photos are displayed in the media. Media reports are made before checking whether an act of charge was filed, simply on the basis of police giving information. To be fair, this shouldn’t be the case even in a crime of rape, until a survivor files a complaint. Then a FIR is registered and it is a public document, you can and should name the accused after that,” Kalpana says.

“Assumption that it is a false case when women are victims”

“Very often, beyond the physical harm, it’s more about the psychological and social trauma that follows and the sense of shame that the victim carries. That kind of shame won’t be there for any other crime, like the theft or physical assault, as long as it’s not sexual in nature. Being the victim of another crime carries less or no stigma, so people can come out and say it happened to them,” says Nagasaila.

Another interesting observation she makes relates to the haste with which people label such claims of crimes against women as bogus cases, as happened in the comments under Vijay Babu’s video. “Domestic violence, dowry-related harassment, section 376 (sexual assault) and subsequent amendments – in all of these legislations, the general response is to shout that women have taken advantage of it, and bogus FIRs have been filed. Abuse of rights is universal. You see abuse of the UAPA (Unlawful Activities Prevention Act) and sedition laws day after day. But there is no call to repeal these statutes. The only appeal occurs for offenses committed against women or members of Scheduled Castes and Scheduled Tribes. Then they say it’s a fake case,” Nagasaila adds.

The disadvantage of the law for survivors

Kavita points out that the law can sometimes be disadvantageous for a survivor of sexual violence who wants to come out into the open. “There is a way the law works against the victim in many cases. Basically, if she’s not named, the defendant can violate her privacy, spread all kinds of stories about her. However, her voice is gagged, as due to this law, she cannot come out and speak her own truth as it is an ongoing matter. Suppose she is no more, then her parents are prevented from naming her,” Kavita says.

Kavita argues that while the law should protect the survivor’s privacy and prevent the accused or any other person or media from naming them, it should allow the survivor to waive that privacy if she wishes and wants to come out on her own. name and on her own terms, or if she is no longer, her family should be allowed to consent to naming her. Kavita mentions the case of Suzette Jordan, the rape survivor in the Kolkata Park Street case, who came out a year later, not wanting to live with the shame of sexual assault anymore. It also mentions the memoirs know my name (2019) by American author and rape survivor Channel Miller, who was the survivor of the very public trial of athlete Brock Turner, who sexually assaulted Miller at a frat night at Stanford in 2015. The book was her way of “recovering one’s identity” which had been anonymized until now.

(With contributions from Geetika Mantri)

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