Subha M Wijesiriwardena

Note: In this piece, when I refer to ‘rape’, I refer more or less exclusively to heterosexual rape, as committed against women, by men. The omission of the discussion of other versions of sexual violence and rape is not exclusionary in intent, but because the piece attempts to discuss ‘rape’ as presented in the film ‘Silence in the Courts’, which explores two occasions of heterosexual rape. However, I have tried my best not to be exclusionary to other experiences of rape, in being conscious of my use of language. Further, I use the word ‘victim’ only to connote ‘victim’ in a legal sense; i.e ‘victim of the violence/assault’ as opposed to a suspect/perpetrator etc.

Prasanna Vithanage’s latest film, the documentary ‘Silence in the Courts’, reveals many crises: primarily of course, the absolute fragility of the concept of justice as we understand it and how easily it can be manipulated by those meant to uphold it. It is about a ‘grave abuse of power’. It is also about a much more difficult thing, actually: it is about how this ‘system of justice’ is itself flawed and unjust.

The documentary is particularly timely and relevant to us now – though perhaps the ideas explored there are always relevant. We in Sri Lanka are caught in a moment where the optimism we had about regime change leading to a possible shift in our political culture is in rapid decline. While we had dared to dream of transparency, accountability and good governance, the vision on which those hopes were built is slowly slipping away from beneath us. On the international stage, the topic of misogyny and its relationship to power has perhaps never been as ‘mainstream’ as it is now, with Donald Trump exemplifying many of the most troublesome aspects of the impunity often granted to rich, well-connected, powerful men, by elite, patriarchal systems – essentially ‘boys’ clubs’ – which protect ‘their own’.

‘Silence in the Courts’ should be championed for many reasons, but also for the subtle way in which it asks difficult questions, for its quiet, strong strain of feminist thinking in its dealings with the questions of ‘what is rape’, ‘what is consent’, and ‘what is justice’, especially when it comes to those historically excluded from power and access to justice. In many ways, as the film shows us, access to justice is power, and preventing people from accessing justice is a way to exclude them from power.

While the documentary chooses not to dwell on dramatizations of the violence of the rape itself, for which I applaud it, it explores the process of reporting rape, and being rejected – the array of ways in which survivors of rape are further violated – particularly when they are face-to-face with the justice system. But the responses of the justice system to rape are merely a reflection of society’s common responses to rape, and vice versa. The onus is on the victim of the assault to prove her credibility. This is how we – individuals, society and systems – respond to women when they try to speak about rape.

We begin with disbelief.

Rape is a rare kind of crime where, universally, the process begins with suspicion of the victim, and the victim is asked to prove her story; it is possibly the only crime in the world where the victim, just by reporting it, risks being blamed for it. In the words of Dale Spender, the Australian feminist researcher, “Rape – where it is a woman’s word against a man’s – is one of the few crimes where corroboration is required. If you have your handbag stolen you don’t have to provide a witness. But if you are a victim of rape – you have to prove it happened: and the unquestioned authority of men and the untrustworthiness of women, works against every woman who is sexually assaulted or violated.”

‘Why did you not come forward before?’ is the first of the questions. It is also sort of the bottom-line. We hear this now every day, as Trump defenders try to explain away the ever-increasing number of allegations of sexual assault being levelled against him. This is a famous question; it is meant to cast doubt on the person reporting the rape. More important questions should be asked in its place, but are not.

Why is it so many survivors of rape wait until so much later to come forward and talk about it (whether it is to report it or to simply talk to someone they know)? Why is the answer to this not obvious to us already?

The irony is this: in the asking of that question itself lies the answer to the question – it is precisely because the world and its systems are conditioned to disbelieve the victim’s accounts of sexual assault as a default reaction, because the default is to believe that accounts of rape seem so ‘unbelievable’ – this is why victims don’t come forward. Why should the victim of the assault further suffer through the humiliation and indignity and frustration of deliberately performed disbelief; disbelief of a thing which occurs so frequently and is so universal and widespread, that anyone’s first instinct should be to believe it right away?

We only need to look as far as our own Sri Lankan system in relation to reporting rape and the procedure of rape trials to see how these so-called justice systems fail survivors of rape so miserably; so much so that it is now no longer absurd to imagine these are deliberate attempts to disenfranchise women and keep them powerless in their most vulnerable moments. Most typically, women victims are questioned, tried, and the worth of their stories ‘judged’ by men and male-centric institutions. Convictions for rape are abysmally low.

First, in many countries and in ours, rape cases need to be built overwhelmingly on physical evidence. This itself is the ultimate sexism, and reveals that these systems were put in place by men who never had any experience of sexual assault. The gathering of valid physical evidence requires timeliness, and is often intrusive. This requires the rape survivor to go to the police, right after the rape has been committed, report the rape, give a statement, recount all the details as accurately as possible, and submit herself to a physical medical examination by the authorities.

The design of these procedures show that we are either delusional about the social frameworks that we all live within, or we simply don’t care about the kinds of ways in which women are uniquely affected by them. The reality is one in which survivors of rape will feel shame and fear, in which she will first assume she must be responsible for it, in some way. The reality is one in which she fears being rejected by her family and community and considered impure. It means we care nothing for the fact that experiencing rape must evoke fear and cause trauma in survivors, two things which will only subside – if ever – with time.

So – this is why women don’t come forward sometimes until months, even years later. Why should they? They are met with blame, disbelief and then slim chances of their trials ending in a conviction. Some women never come forward. Many women never do. Some never report it. Sometimes women come forward only when another woman has already done so, in accusing the same man. This too is illustrated in the film. This is a common pattern, especially when the man is particularly powerful and well-known. There is nothing suspicious or dubious about this. It should all be perfectly understandable.

As the documentary then shows us, the questions which follow the first question become increasingly concerned with the agency of the woman to resist rape. ‘Why didn’t you run away?’, ‘Why didn’t you scream?’, ‘Why did you go back there?’ The onus is shifted from the perpetrator and the incident of violence to the woman and her ability to respond to such a situation – the notion then, is that the rape must have occurred because she simply did not resist hard enough, or was stupid enough to return to a place/person she knew was dangerous. Somehow, yet again, the system looks for a way to pin the blame on the victim of the rape.

Sexual assault, sexual harassment, domestic violence and rape – committed most often (but not always) by men on women – are about power. Every time a man gropes a woman on the bus, or starts masturbating in her view in a very public space – it is about power. Every time a man rapes a woman – whether through physical coercion or through other means of non-physical intimidation – it is about power. And because it is about power, the perpetrator doesn’t need to physically overpower the victim. It is because he can and because he knows there is nothing she can do about it. It is an attempt to humiliate, to paralyse, to dis-empower completely.

The rapist doesn’t need to hold a victim down for it to be considered ‘rape’. It is rape if she is scared to leave the room, if she is scared to scream, if she is scared to refuse him.

And the film shows us this very clearly. Why doesn’t she run away? Why does she go there, again, knowing what he wants to do? It is because she is scared and she is powerless in relation to him. Because she has no choice. Rape is an attempt to assert power over someone with no power to do anything about it, and then enjoy it.

In ‘Silence in the Courts’, the rapist is a man who is particularly powerful, who the system has deemed worthy and granted with protection and impunity, and the survivors of the rapes, in both cases, are women who are disenfranchised and ‘powerless’ in this system. He is a magistrate, he presides over cases where their lives are implicated; they are poverty-stricken, they are alone. While the circumstances of this specific scenario illustrates the point of power very acutely and very literally, the film also reminds us – even if he weren’t that ‘powerful’, and she wasn’t that ‘powerless’, in the world in which we live, men are inherently invested with more power than women, by a system which they protect and which in turn, protects them. We are not equals, in this sense, no matter the specific circumstances. She has no recourse, no real ability to take any action or access the justice system and hope it will favour her. She cannot fight him one-on-one; not physically, not in any other way. Justice is not on her side.

Rape itself is the abuse of power.

The film also deepens the discourse about male power in its reflection on the responses of each of the husbands to the rapes of their wives. It asks us to question notions of honour/dishonour, ownership/guardianship and pure/polluted. In some sense, it asks us to question the very beliefs which have shaped a justice system, which is deliberately exclusionary.

The film’s theme is justice and its quest is justice; it attempts to pick away at the veneer of cover-up and of the terrible crimes which were covered up. But more importantly, it seeks to uncover this ‘boys’ club’ in some way and to shatter its armour. For this, it is a film of importance and of significant courage.