I attended a seminar few years ago where a speaker discussed a very peculiar case that had come up in court in India.
A girl who was allegedly raped was brought to court with the perpetrator and the trial was held. According to the FIR prepared by the police, the girl did not protest when she was "penetrated" and hence, the rape charges are not applicable since the law states that, rape constitues forceful sexual abuse. The girl did not deny the report but she loudly stated that she was raped. This created confusion in the court and the judge asked her why she says so. The girl told the judge that the moment the man ripped her clothes off, she was raped. The man assualted and intruded into her space and tearing her clothes was equal to rape. The judge was symathetic to her but circumstances and the law itself was not favorable for her. So, the man was not punished as the verdict stated that it was a mutual act.
This case was taken up for studies by theorists and researchers because subjectivity is a very tricky concept when it comes to the law. The girl felt she was raped because her clothes symbolised dignity and honour for her which she lost when the man tore her clothes. She did not feel the necessity to protest because she already felt raped and assaulted. I was angry when I heard this at first because she should have protested. But, then when I think of it from another angle, I understand what she meant. When anybody touches me at random, I am aware of that touch and if a stranger tries to even come a bit close to me, I feel agitated.
What I still think about is that, how do you handle such a situation, fairly. If we say that the assault was on a minor level or major level, then we are trying to assess pain and determine a scale for trauma. I do not believe that there will ever be an accurate scale to determine pain. How do you even measure pain? So, then how do we solve such a case, fairly. It is the subjective view of the girl in opposition to the objective nature law tries to achieve. Both are justified separately but when, brought together, how can there be a fair judgement to such a situation?
When I discussed this case with my friends, some of them (boy, girl alike) told me that the girl was over-reacting. Some them strongly protested saying that the trauma the girl experienced cannot be judged by a third person. I also realised later, that thsoe who protested had experienced sexual abuses at some point of their lives. They feel the pain and the trauma caused by it even now which allows them to understand the girl's emotions.
I feel that society works or at least tries to work objectively to create a standardized method of assessing and judging. But, can there ever be a singular way of considering traumatic events? Comparing and contrasting "incidents" to see which one is more painful and more traumatic is insensitive and disrespectful. Each situation should be treated differently. Is it easy? No! So wasn't the violence suffered by the victims.
The court should safeguard the victim, through which justice prevails.