"She Invited It": When the Law Blames the Victim

10 Apr, 2025

Inside the Courtrooms—Where Survivors Are Put on Trial and Rapists Walk Free

A High Court judge still says, “She invited trouble.”¹ Not the rapist. Not the predator. Her. This isn’t just a rogue opinion; it’s a mirror to a system where survivors are asked what they wore, why they trusted, how loud they screamed. I am diving into the deep rot of India’s legal response to sexual violence: judges acting like moral gatekeepers, marital rape still unrecognized, Dalit and queer survivors erased, and courtroom questions designed to shame rather than seek truth. From legal gaslighting to media trials, we unpack how credibility is constructed, consent is ignored, and justice is denied. What I intend to seek is to investigate how the Indian legal system perpetuates secondary victimization, a phenomenon where survivors are retraumatized by the very process meant to deliver them justice. To do so, I am exploring, here, how legal gaslighting, moral gatekeeping, and structural impunity continue to undermine even the most progressive laws. And I ask: When survivors must fight not only their attackers but the system itself? What kind of justice is really being served? This isn’t about broken systems. It’s about systems built to break the vulnerable. But if shame is the weapon, rage can be the revolution.

It is 2025. And yet, in an Allahabad courtroom, a High Court judge grants bail to a rape accused and justifies it by claiming the victim ‘invited trouble.’² This is not a legal anomaly. It is a symptom of a judicial culture that too often upholds patriarchal scripts over constitutional rights. The phrase isn’t new. It’s been echoed across decades and continents, through courtrooms, police stations, media panels, and family dinners. But when it appears in a formal judicial verdict, which is a document that shapes precedent, policy, and perception, so it ceases to be just a casual cruelty. It becomes structural violence, codified and legitimized by the very system meant to deliver justice. India’s legal system continues to be haunted by deep-rooted misogyny, casteism, and heteronormativity; conditions that disproportionately affect survivors of sexual violence, particularly those from marginalized communities. While progressive laws exist on paper, from the Criminal Law Amendment to POSH Act to POCSO Act³, their implementation often betrays a bias that renders them impotent in practice.

The Legal System as a Site of Secondary Harm

Victim blaming in courtrooms is not simply anecdotal. It is systemic. It manifests in the language of verdicts, in the discretionary power of judges, in the selective framing of cases, and in how consent is dissected, doubted, or dismissed. This article examines how the Indian legal system facilitates secondary victimization, how judgments often shift focus from the accused to the survivor, and why legal reform must move beyond statutes into the very attitudes that interpret and apply them.

Victim blaming in India is not a fringe issue. It is embedded within the very architecture of our legal and societal institutions. Survivors of sexual violence are frequently made to prove their own innocence: questioned about their clothing, motives, alcohol consumption, prior sexual history, and relationship with the accused. The burden of guilt shifts from perpetrator to victim, not subtly, but with institutional authority.

This burden becomes heavier depending on who the survivor is. Dalit women are often met with systemic erasure when they report crimes, their caste identity becomes a barrier to both police action and media coverage. In high-profile cases like Hathras in 2020⁴, we saw an administration that not only failed to deliver justice but actively worked to suppress it. Queer and trans survivors face ridicule, disbelief, or outright dismissal, often not even seen as victims within heteronormative legal frameworks. Many are subjected to corrective violence⁵, and when they report, their experiences are trivialized, medicalized, or mocked. Marital rape, meanwhile, remains legal. A woman raped by her husband has no recourse under Indian law, unless she is separated. The assumption of perpetual consent in marriage continues to deny countless women their agency, and recent court deliberations, like those in the Delhi High Court split verdict in 2022⁶ reflect the ongoing hesitation to criminalize it.

And all of this is wrapped in a culture where even judges, the supposed guardians of the Constitution, can echo societal stereotypes without accountability.

What is Secondary Victimization?

Secondary victimization refers to the additional trauma that survivors endure during the post-crime process: police interrogation, medical examination, courtroom cross-examination, and media scrutiny. It’s the trauma that follows the crime. In India, this experience often mirrors the violence itself degrading, accusatory, and alienating. It’s being interrogated like a suspect, cross-examined like a liar, treated like the problem. It’s the system gaslighting survivors suggesting the violence was their fault.

• “Why didn’t she scream?”
• “Why did she go with him?”
• “Why did she come forward so late?”

Each question isn’t about truth. It’s about control. It’s about rewriting violence into regret. This is not accidental. It is the result of:

• A patriarchal legal gaze that doubts rather than believes,
• A burden of proof model that is skewed against survivors,
• And a judiciary and police force still shaped by outdated notions of morality, modesty, and gender roles.

Interesting reference can be made to a recent judgement by Madras High Court, even an isolated offence of sexual harassment at the workplace must be considered as a ‘continuing offence’ if it is grave in nature and is causing constant trauma and fear in the victim’s mind.⁷

Legal Gaslighting: How Courts Erase Pain

Consider how often courtrooms operate not to affirm a survivor’s truth, but to dissect it to find flaws, inconsistencies, or “moral failings.” Judges ask:

• “Why did she not scream?”
• “Why did she not resist?”
• “Why did she go with him if she didn’t trust him?”
• “Why did she come forward so late?”

Each question assumes that violence is preventable—if only the woman had behaved differently. Each question isn’t about truth. It’s about control. It’s about rewriting violence into regret. This is legal gaslighting—a term used to describe how courts manipulate survivors into doubting their own experience, often reframing trauma as regret or misunderstanding.

• “She did not look disturbed, reserved, terrified or traumatised in any way even though this was immediately after she claims to have been sexually assaulted,” wrote Judge Kshama Joshi in Tarun Tejpal's sexual harassment case.⁸

• A Bombay High Court judge ruled that groping a minor over her clothes did not amount to “sexual assault” under POCSO because there was no “skin-to-skin contact. (This judgment was later stayed by the Supreme Court.)⁹

• Delhi HC, split verdict on marital rape (2022): Not all marriages are made in heaven, and the state cannot criminalize every instance of sexual dissatisfaction.¹⁰

Many rape survivors in India have reported feeling “mentally violated” during legal proceedings, even after medical recovery.¹¹ These violations were psychological, procedural, and deeply personal:

• Long delays,
• Cross-examinations focused on “motive,” attire, or virginity,
• Courtroom atmosphere likened to “being put on trial myself.”

In the Unnao rape case¹², the survivor faced continuous harassment and threats, and her father was beaten to death in custody. The accused, a powerful MLA, enjoyed political protection for months before action was taken. Her story was doubted, her pain politicized, her survival met with scrutiny. Self-immolation is what it took to file a chargesheet.

In courts across the country, judges have asked for ‘proof of resistance’¹³ as if freezing in fear or not sustaining visible bruises implies consent. Medical jurisprudence is still often used to undermine rather than support survivors’ statements. These statements are not just intellectually flawed, they’re retraumatizing. Survivors hear them and are reminded that the system may not believe them unless they bled, screamed, or died.

When Judges Become Moral Gatekeepers

In theory, judges are meant to be neutral arbiters, interpreters of law, not enforcers of cultural morality. But in practice, many Indian judges act as moral gatekeepers, passing judgment not only on the facts of a case but on the perceived character of the survivor. One can distinguish between social morality¹⁴ (often rooted in caste, patriarchy, and religion) and constitutional morality¹⁵ (rooted in justice, equality, and liberty). When judges let social morality override constitutional mandates, the courtroom becomes an instrument of control, not emancipation. When judges defer to the former, they weaponize the bench.

They deny bail or convict based on caste equations, clothing choices, or perceived “virtue.” They reduce sexual violence to a matter of honor, rather than harm. In Maheshwar Tigga v. State of Jharkhand¹⁶, the Supreme Court set aside a conviction, stating the survivor’s continued interaction with the accused “created doubt” on her allegation—even though fear, manipulation, and social stigma often influence such contact. Judges have also cited survivors’ “lack of visible trauma” or “delay in FIR” as reasons to question credibility, despite well-documented psychological research showing delayed reporting is the norm, not the exception.

In 2021, a Madhya Pradesh judge offered bail to a man accused of molestation on the condition that he would get a rakhi tied by the victim.¹⁷ This act was not just tone-deaf; it reduced sexual harm to a family drama trope—ritualized forgiveness, without justice or accountability.

Dr. Pratiksha Baxi, in her seminal book “Public Secrets of Law”, argues that courtrooms often function like “theatres of honor”, where women must prove their moral worth to be believed. She identifies how legal processes, even with the intention of justice, can expose the victim to further humiliation and sexualization. This can involve discussions of the victim's past, the use of language that trivializes the event, and the overall atmosphere of the courtroom, which can be perceived as a "pornographic spectacle". Baxi argues that the legal system, as practiced in rape trials, can be a source of violence and suffering, rather than a means of justice. She emphasizes the importance of understanding the "law in action" – the way law is actually practiced – and not just focusing on the abstract principles of law.

Kalpana Kannabiran, in her book "Tools of Justice: Non-Discrimination and the Indian Constitution" has emphasized how the judiciary’s “culture of disbelief” is not neutral, but gendered, casteist, and heteronormative. This concept refers to situations where authorities or the broader society may not believe or take seriously the experiences of marginalized individuals, particularly in legal contexts like asylum or disability discrimination. The principles of natural justice has it's roots put in the trenches of a hardly set of political, social customs and norms.

Marital Rape: The Legalized Violence at Home and the Specter of Consent

India remains one of the countries where marital rape is not a criminal offence. Exception 2 to Section 63 of Bharatiya Nyaya Sanhita (previously, Section 375 of the Indian Penal Code) explicitly states:

“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

This exception effectively creates a zone of immunity within marriage. The law assumes that consent is permanent, irrevocable, and embedded into the institution of marriage itself—a contract that overrides bodily autonomy. This isn’t legal oversight. It’s legal intent. Marriage is treated as blanket consent—permanent, unquestioned, and irrevocable. But marriage is not consent. Because consent cannot be assumed. Sexual consent must be active, enthusiastic, and ongoing—not presumed by vows or sanctioned by tradition. It must be informed and freely given.

The #FGKIA framework¹⁸ reframes consent beyond mere “yes” or “no.” Developed in feminist and trauma-informed advocacy spaces, it insists that for consent to be valid, it must be:

• Freely Given: Without coercion, manipulation, economic dependence, or social pressure.
• Knowledgeable: Based on full understanding of the nature, intent, and consequence of the act.
• Informed: Not obtained through deceit, threat, or withheld information.
• Agreement: Not passive silence or resignation—but active participation.

Under this lens, many instances of sexual activity within marriages would qualify as rape—especially where women are coerced by:

• Emotional blackmail,
• Threat of abandonment,
• Cultural conditioning to perform “wifely duties,”
• Or, fear of domestic violence.

Despite ongoing litigation, Indian courts have largely shied away from striking down the marital rape exception. In 2022, the Delhi High Court delivered a split verdict on marital rape exception:

Justice Rajiv Shakdher declared the exception unconstitutional:

“Marriage does not mean that the woman is always willing to engage in sexual activity.”

Justice C. Hari Shankar upheld the exception, suggesting the issue required legislative, not judicial intervention.

The matter now rests with the Supreme Court¹⁹ but parliamentary inertia and cultural resistance to redefining marriage have stalled progress. Meanwhile, women continue to suffer. Although marital rape is not recognized as a crime, data from the National Family Health Survey (NFHS-5, 2019–21)²⁰ shows:

• 32% of ever-married women have ever experienced spousal physical, sexual, or emotional violence by their current husband (for currently married women) or their most recent husband (for formerly married women).
• 6% have experienced spousal sexual violence;
• 5% experiencing it in the past 12 months of the survey;
• 5% said their husband used physical force to have sexual intercourse when they did not want to (the form of sexual violence most commonly reported by women);
• 4% reported that their husband forced them with threats or in other ways to perform sexual acts they did not want to;
• 2% reported that their husband forced them to perform any sexual acts they did not want to.

Out of such cases, few are reported, and even fewer reach court. And when they do, it is not recognised as rape. Courts hesitate. Parliament stays silent. And women bleed within homes that law won’t enter. This invisibilization is compounded for marginalized communities:

• Dalit and Adivasi women, often denied even community support.
• Queer people coerced into sex to “prove normalcy.”
• Disabled women, particularly vulnerable to control by caregivers or spouses.

Justice A. K. Sikri, in Independent Thought v. Union of India²¹, while addressing child marriage, noted that sexual intercourse with a girl between 15 and 18 years old is rape, regardless of whether she is married or not. This judgment effectively read down the marital rape exception in Section 63 of Bharatiya Nyaya Sanhita (or, Section 375 of the Indian Penal Code), stating that the exception does not apply to minors. Although this judgment did not strike down the marital rape exception for adults, we can use this as a constitutional foothold to argue that bodily autonomy cannot be surrendered by marital status.

The “Perfect Victim” & The Manufacturing of Credibility

On the night of December 16, 2012, a 23-year-old physiotherapy intern and her friend boarded a private bus in South Delhi. What followed was one of the most brutal gang rapes in Indian history. The survivor was later named “Nirbhaya” by the media; a name that means fearless, though her real identity remained legally protected. While the public outpouring of support was unprecedented, the case also became a textbook study in media-fueled victim narratives. The survivor was framed as:

• Innocent because she was returning from a movie, not a bar or nightclub.
• “Modern but moral,” fulfilling the palatable mold of a “good victim.”
• Praised for her stoicism and silence, rather than rage or resistance.

She became a symbol. And symbols are easier to support than flawed, complex, angry survivors. The media celebrated her morality not her defiance. She fit the mold.

Media portrayals often sanitize trauma to make it more socially digestible by transforming survivors into symbols rather than subjects.²² While the intention may be to generate empathy or spur action, it can end up stripping the person of their complexity—turning them into a narrative tool rather than a full human being with agency, personality, contradictions, and voice. By "sanitizing" trauma—avoiding the full, often uncomfortable truth of systemic violence, the slow bureaucratic failures, the cultural complicity—stories become more palatable to mainstream audiences. This often allows society to grieve without confronting the deep, ongoing problems that led to the violence in the first place.

Meanwhile, the same year, dozens of cases involving sex workers, Dalit women, and queer persons received little to no attention.²³ Their suffering did not fit the aesthetic of national shame or outrage. They are shamed, ignored, or blamed. Because India doesn't just want survivors, it wants “good” ones. When we say ‘Nirbhaya,’ we forget that she had a name. A story. And we also forget the hundreds of unnamed women who die in silence every year.

The System Is Working "As Designed" – Power, Surveillance, and the Logic of Blame

Victim blaming is often dismissed as personal bias or cultural failure. But zoom out, and it becomes clear: victim blaming is not incidental—it is structural. It is the invisible wiring beneath the surface of law, media, family, and public discourse.

Borrowing from Michel Foucault’s theories of surveillance and discipline, we see how social institutions do not merely respond to crime—they produce “truths” about bodies, morality, and deviance. Survivors of sexual violence are not judged only on facts, but on how well they perform suffering under these male-centric disciplinary gazes:

• Were they “modest” enough?
• Did they scream?
• Did they “fight back”?
• Did they appear traumatized?

These are not legal questions. They are moral evaluations, rooted in carceral patriarchy, where law enforces not just order, but ideology. These moral evaluations function as tests of credibility, but their real purpose is social control. They discipline not just the survivor, but all women, queer people, and gendered bodies who live under the implied threat: if it happens to you, make sure you suffer the right way.

The threat of judgment makes individuals self-regulate their behavior. Survivors internalize this gaze long before they step into a courtroom or a police station. They rehearse their testimony for acceptability, not just accuracy. They cry, but not too much. They dress in ways that won’t “undermine” their case. They anticipate disbelief and build their stories defensively.

This is why structural victim blaming is so insidious—it doesn’t require overt cruelty. It can wear the face of bureaucracy, of concern, even of solidarity. A judge may ask a survivor if she tried to escape. A journalist may ask why she was out late. A family member may advise silence, for the sake of marriage prospects. None of these people believe they are doing harm. But all of them are enforcing the same logic: you are not allowed to be complex, messy, or human. You must be a perfect victim, or no victim at all.

Intersectionality: When Blame Is Not Distributed Equally

Kimberlé Crenshaw’s concept of intersectionality is critical here.²⁴ Dalit women, queer survivors, trans persons, and sex workers often bear intensified scrutiny. Their survival is treated not as resilience but as evidence of exaggeration, promiscuity, or irrelevance. For Dalit women, rape is not just an act of violence, but it is a caste weapon. And yet, their stories are invisibilized by both Savarna feminism and mainstream justice. The legal and social framework prefers a “perfect victim”: chaste, sober, heterosexual, tearful, middle-class, preferably upper-caste. Step outside this mold and the assumption of blame is near-automatic. This is how blame becomes embedded in policy, legal process, police protocols, media framing, and even survivor support services. It’s not one bad apple—it’s the orchard.

This unequal distribution of blame reveals how systemic violence operates not only through acts of harm but through the frameworks that define whose suffering is legible and whose is disposable. Intersectionality doesn’t just add layers to identity, it also exposes how systems like caste, class, gender, and sexuality interact to structure vulnerability and silence. For instance, when a Dalit woman is assaulted, her caste status often invites a different set of responses; not legal urgency, but skepticism. This logic is not aberrant, rather it is embedded in how colonial and Brahmanical ideologies historically positioned Dalit bodies: hypersexualized, polluting, and outside the moral community.

Similarly, queer and trans survivors face a justice system that often cannot even name their existence, let alone offer protection. Police mock their identities, courts misgender them, and shelters refuse them entry. Their trauma is read not as a violation of rights, but as an inevitable byproduct of their non-conformity.

This hierarchy of suffering shapes everything—from whose cases are fast-tracked, to whose images are pixelated, to whose names are protected, to whose grief is mourned publicly. To challenge this, we need more than legal reform, we need epistemic justice. We need to center voices at the margins, not just as footnotes or data points, but as theorists of their own experience.

Legal Infrastructure That Codifies Blame

Victim blaming isn’t just a social attitude—it’s codified and reinforced through law and legal practice.

In Indian courtrooms, defense lawyers frequently lean on Section 146 of the Indian Evidence Act, which permits questions about a woman’s “character” to impeach her credibility. Although Section 53A of the Criminal Law (Amendment) Act, 2013 tries to restrict this (by stating that a victim’s sexual history is irrelevant), loopholes remain wide. State of Punjab v. Gurmit Singh (1996)²⁵ is where he Supreme Court held that testimony of the victim should be given due weight. The testimony of a survivor in cases of sexual assault or rape holds significant probative value and, if found credible and trustworthy, may be sufficient to sustain a conviction without the necessity of corroboration. Insisting upon corroboration as a matter of course is not a legal requirement and serves only to undermine the dignity of the survivor. While the Court may, in appropriate cases, seek some assurance to satisfy its judicial conscience; recognizing that the survivor is an interested witness, such assurance is a matter of prudence, not of law. The evidence of a victim of sexual assault stands on par with that of an injured witness and may, in certain circumstances, be considered even more reliable. The survivor is not an accomplice but the victim of the offence, and her testimony must not be approached with inherent suspicion. Rigid insistence on corroboration risks perpetuating injustice through undue skepticism, contrary to the object of a fair adjudicatory process. Yet, in practice, survivors are grilled on their attire, drinking habits, previous partners. Where survivors must “prove” they didn’t deserve their violation.

Judges often grant bail based on lack of injury, delay in FIR, or the survivor’s prior relationship with the accused—factors deeply rooted in rape myths. Just like this recent case in point, the Allahabad High Court granted bail citing the woman “invited trouble” by going to the man’s room at night. This reflects the dangerous normalization of morality tests over legal standards of consent and coercion.

India still does not criminalize marital rape (Exception 2 of Section 63, BNS or previously, Section 375, IPC). The law presumes permanent consent within marriage, institutionalizing the idea that wives cannot be raped. This reflects structural victim blaming at its most insidious: denying women legal recourse simply because they are wives.

Victim blaming isn’t about “bad judges” or “ignorant families.” It is an operating system—a coordinated logic through which power maintains itself. It asks not: Did this happen? But: Was she the kind of woman to whom this should happen?

Media, Public Perception, and the Manufacturing of Credibility

If the courtroom is the theatre of law, the media is the amplifier of cultural judgment. Survivors don’t just face a trial in court—they face a trial by camera, social media, WhatsApp groups, and prime-time panels. And while the judiciary may pretend neutrality, media narratives manufacture public “truths” long before the verdict.

Mainstream media follows a predictable arc in covering sexual violence, we can call it the “The Good Victim Script”:

• Outrage (if the survivor is photogenic, upper-caste, English-speaking, urban);
• Scrutiny (once the accused’s status is revealed or “complexities” emerge);
• Silence or Doubt (if the survivor doesn’t fit victim norms, or continues to speak out on her own terms).

The way Guwahati molestation in 2012²⁶ and Kathua rape case in 2018²⁷ were covered demonstrates the spectrum; from voyeurism to communalization.

Social media, which could be a tool of solidarity, often becomes a mechanism of real-time moral policing to conduct digital witch-hunts and “ëvidence auditing”. Survivors are expected to:

• Publicly share every detail of trauma;
• Be consistent, calm, and factual;
• Avoid anger, ambiguity, or any perceived “agenda”.

The digital response to women naming their abusers during the #MeToo movement in India (2018) laid this bare.²⁸ Survivors were stalked, doxxed, and asked for proof they were never expected to preserve. Meanwhile, powerful men demanded “due process”; a tool rarely accessible to survivors themselves.

The media often centres the accused’s reputation²⁹ (“esteemed professor,” “promising actor,” “retired judge”, “student with good marks,” “young man with a promising career”), while the survivor becomes an accusation embodied—a risk, a threat, a potentially manipulative woman. Credibility is a gendered currency in the “he said, she said” battle.

In the case of Mahmood Farooqui v. State³⁰, the Delhi High Court questioned the survivor’s “non-resistance” and emphasized “gray areas” in consent—amplified later by op-eds mourning the “death of romance” in the age of feminism. The man’s loss of status was framed as more grievous than the woman’s violation. The judgment has been widely criticized for its flawed interpretation of consent and reliance on gender stereotypes, despite significant reforms in Indian rape law. The survivor alleged non-consensual oral sex, testifying that she said “no” multiple times and only pretended to consent out of fear. Although the High Court found her a “sterling witness,” it doubted the absence of consent, invoking stereotypes like a “feeble no” possibly meaning “yes,” and suggested differing standards of consent based on the parties’ prior relationship or background. Rather than acquitting Farooqui solely on factual doubt, the court misapplied legal standards, undermining decades of reform aimed at removing bias from rape adjudication. By reviving discredited myths and applying an erroneous standard of consent, the decision posed serious risks to the integrity of sexual assault law and to survivors’ rights.

This is not just narrative bias. It is the industrial manufacture of credibility, where media, public sentiment, and patriarchy collude to filter whose pain is real, and whose is theatrical. The media doesn’t just report on sexual violence, it co-authors the script of legitimacy, deciding who is worthy of justice, and who is guilty of disruption. Survivors are told: If you want to be believed, you must be broken—but not too broken, angry—but not aggressive, vocal—but not political. And still, often, it won’t be enough.

Toward Justice Beyond the Courtroom — Feminist Futures and Structural Reform

The criminal legal system in India, as it stands, was never built for survivors of sexual violence. It was built to discipline and contain, not to heal or restore. When survivors enter this system, they must perform pain in acceptable ways, align with patriarchal respectability, and hope their trauma meets the state’s standards of credibility. But what if the goal isn’t just conviction? What if we imagine justice as transformation, not punishment?

Restorative justice, when survivor-centred and trauma-informed, offers an alternative to adversarial models. It shifts the question from “Was a law broken?” to:

• What harm was done?
• Who is accountable?
• What do survivors need to feel safe, heard, and whole?

While the Indian legal system doesn’t formally recognize restorative processes in sexual violence cases, grassroots models already exist. Dalit feminist and Adivasi collectives have, for decades, created community-based mechanisms for collective redress, survivor-led accountability, and cultural safety—long before these frameworks were given academic names. For example, MASUM (Maharashtra) and Sakhi Women’s Resource Centre (Kerala) have run survivor-led dialogue processes that prioritize healing, agency, and consent, not just legal outcomes.

Feminist jurisprudence calls us to go deeper than surface-level reforms. The goal is not just gender-sensitive training or procedural efficiency. It is to question the very foundations of law:

• Who makes it?
• Who interprets it?
• And, whom it serves?

Why is Section 63 of the BNS (or, previously Section 375 of the IPC] still married to the “absence of consent” rather than its affirmative presence? Why is marital rape not criminalized, despite national and international outrage? Why does victim compensation remain discretionary, and why are false cases still treated as a major threat, when conviction rates³¹(https://www.reuters.com/world/india/indias-struggles-with-high-rape-cases-low-conviction-rates-2024-08-15/) for rape hover around 25%?

In Independent Thought v. Union of India³², the Supreme Court ruled that sex with a minor wife is rape. Yet, marital rape for adult women remains legal; a contradiction that lays bare the heteropatriarchal core of Indian law. The hesitation to open up the legal system that would convict husbands as rapists scares the male-centric stakeholders of the society. Because, the recognise the power shift that will take place and replace the values of “obedience” and “duties” of wife with “equal status” of wife.

Feminist theory doesn’t just seek inclusion. It demands structural upheaval, where survivors’ autonomy, agency, and intersectional identities are at the center of lawmaking. The thoery rejects policy fixes that merely tinker at the edges—like fast-track courts or harsher punishments to serve the state’s image, not the survivor’s interests. Instead, the thoery demands:

• Criminalization of marital rape, with removal of Exception 2 under Section 63 of BNS (previously, Section 375 IPC);
• Mandatory trauma-informed, survivor-centric, rights-based, gender-sensitive training for judges, prosecutors, and police;
• Survivors’ right to anonymity, dignity, and privacy protected by law, especially in media;
• Real, tangible, could-be-filled-up-in-a-box expansion of support services: counselling, legal aid, medical care, shelters—across rural and marginalised geographies;
• Integration of restorative justice options, where survivors can choose the path that meets their emotional and political needs.

We cannot demand justice from a system built to surveil, shame, and silence. But we can demand more. We do not expect the system to be sanitized, sanctimonious, or free of imperfection—but we do expect it to be just. We expect it to recognize harm when it is named, to listen when voices tremble but speak, and to evolve beyond the weight of precedent soaked in prejudice. We demand that the law serve the people; not protect power, not preserve hierarchy, not perform neutrality while enacting bias. Justice must not be a performance, but a practice that is deliberate, humane, and unafraid of truth.

We can imagine a system where #FGKIA—Freely Given, Knowledgeable and Informed Agreement³³ becomes the legal norm, not the feminist exception. Where the definition of consent does not only survive in progressive discourse or committee reports, but is embedded in law, interpreted with care, and applied without bias. Where consent is not something to be doubted, dissected, or diluted—but respected. Where “no” is not weighed against the survivor’s past, silence is not mistaken for agreement, and trauma is not turned into a trial of character. We can imagine and demand a system that does not default to disbelief, but begins with dignity. Where survivors don’t have to choose between truth and dignity. And where justice is not reduced to prison bars, but expanded into community, repair, safety, and freedom.

The legal system in India does not fail survivors by accident. It fails them by design. The problem is the system, not the survivor. The trouble is not invited by survivor but housed, harboured and (up)held by the system. From hostile courtrooms to paternalistic judges, from sensationalist media trials to the strategic use of delay, disbelief, and denial—victim blaming is not a bug in the system; it is a feature. It is how patriarchal legal cultures sustain themselves under the veneer of due process. Survivors are told to be calm but outraged, damaged but resilient, broken but coherent. They are not just disbelieved—they are disassembled, their stories filtered through caste, class, marital status, sexual history, and more. The law asks: Was she credible? Feminist justice asks instead: Why must she perform credibility at all?

This piece has attempted to trace the anatomy of victim blaming—not just as rhetoric or bias, but as a structural logic embedded in Indian legal institutions. It has shown how judges act as moral gatekeepers, how media manufactures suspicion, and how certain survivors—Dalit women, queer persons, disabled survivors, and those seeking justice against marital or custodial rape—are rendered invisible by the very system that claims to protect them. But survival is political. And so is imagination. We can and must envision alternatives. Feminist legal theory tells us the law is not sacred—it is a human invention. It can be remade. Restorative justice, consent-centered frameworks like #FGKIA, and survivor-led accountability models offer blueprints for how. So the call is not just to reform rape law. It is to dismantle rape culture where it hides in black robes and court orders, and to build a justice system where harm is acknowledged, power is redistributed, and healing is possible. Because survivors do not need to be saved. They need to be believed, supported, and free.

Justice must begin by believing survivors, not interrogating their morality. It must acknowledge that power, not behavior that enables violence. It must move beyond norms to rewire the institutions that interpret them. Because until the system stops asking, “Why did she go with him?” And starts asking, “Why did he think he could?” Justice will remain a myth for the most vulnerable.

Further References:

• Complexities of inclusion and exclusion: Dalit students and higher education in India by Sanil Malikapurath Neelakandan and Smita Margeshwar Patil

• Indian media’s #MeToo movement left out its countless women freelancers in hinterland By Makepeace Sitlhou

• A RESEARCH STUDY ON GENDER SENSITIVITY AND THE COVERAGE OF RAPE IN THE INDIAN NEWS MEDIA: TEN YEARS AFTER THE NIRBHAYA CASE by Dr. Sweta Singh & Sameera Khan

• Indian Media Narratives in Gang Rape by Astha Bhandari

• For Footnote 3: ³: Criminal Law (Amendment) Act, 2013: A landmark legislation enacted in response to the 2012 Delhi gang rape case, it expanded the definition of sexual offences under the Indian Penal Code (IPC), introduced new crimes like stalking and voyeurism, and strengthened laws on rape, including enhanced punishments and provisions for faster trials. POSH Act: The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 aims to protect women from sexual harassment at the workplace. It mandates Internal Committees in organizations, lays out procedures for complaints and redressal, and ensures safe working environments. POCSO Act: The Protection of Children from Sexual Offences Act, 2012 provides a comprehensive legal framework to protect children (under 18) from sexual abuse and exploitation. It defines various forms of abuse, ensures child-friendly procedures during investigation and trial, and mandates reporting of such offences.

Footnotes: