Several concerns arise in relation to the reportage of sexual violence. Every once in a while, these concerns take centerstage when content deemed particularly egregious is published. TimesNow’s show on Monday, in which the television channel aired CCTV tapes that it claimed were evidence from the ongoing trial in which writer Tarun Tejpal is accused of rape, seems to have fit the bill.

In its primetime show, the channel aired CCTV footage of Tejpal and the woman who accused him of rape entering and exiting the lifts where the alleged crime took place in 2013. As the tapes were played on the channel, what appeared to be presented as the woman’s detailed testimony was read out. Throughout the show, TimesNow editor Rahul Shivshankar claimed to be questioning what Tejpal apparently believes is evidence of his innocence. But he did so while seeming to make no mention of the trial being ‘in camera’, meaning reportage of details is generally restricted by law without court consent. The channel went on to break down the tapes, in excruciating detail, with a panel of reporters and analysts.

Such reportage quite rightly raises concerns. Questionable reportage is, however, not at all unusual when it comes to reporting sexual violence, and it is certainly not the monopoly of TimesNow. There are both legal and ethical issues involved, and the tale isn’t necessarily a story about the malicious against the well-intentioned. The law may well be breached not just by those who are ignorant of it or who maliciously choose not to respect it but also by those who believe that it is structurally toxic.

Protecting identities

One of the first precepts of the law is to protect the identities of women and children who have allegedly been raped or subjected to various other forms of sexual violence which it contemplates as requiring identity protection. The law provides such protection this through the Indian Penal Code as well as statutes which deal with sexual harassment at work and child sexual abuse. There are legal mechanisms through which victim identities may be publicly revealed but the law leans towards non-disclosure. Given that Indian society often treats victims of sexual violence extremely harshly, there are sound practical reasons to keep victim identities secret.

Nonetheless, what is inescapable is that early laws that protected victim identities found their basis in the supposed shame of having been raped. Considering their rationale, it is all too easy to decide to thwart patriarchy by revealing identity and refusing to associate having been raped with shame. However, when one unilaterally acts on that decision in relation to another person, one is almost certain to have broken both law and one’s ethical obligations. It doesn’t matter if one intends not to harm the person raped but to dent patriarchal fetters instead. The law does not contain a “feminism-at-work” exception even if it were possible to convincingly argue that such an act is inherently feminist; it isn’t. After all, unilaterally disclosing the identity of a person who has been raped is a violation of their agency.

The law doesn’t always help matters. It is sometimes unclear about what it intends to keep confidential. When it comes to sexual harassment at the work-place, for example, confidentiality is not a monolith. It could relate to the identities of witnesses, alleged victims, alleged perpetrators, allegations, proceedings, or findings. Although there’s no doubt that victim and witness identities are to be kept confidential at all stages, the 2013 statute that deals with the subject contains an intriguing exception which allows the dissemination of information “regarding the justice secured to any victim of sexual harassment” under the statute.

It isn’t clear what exactly the statute contemplates when it speaks of justice secured to any victim. To further complicate the issue, there is also a provision in the Indian Penal Code that deals with sexual harassment but which does not contain comparable confidentiality requirements in its main body. There are therefore questions about how the two provisions would interact if both of them were involved in a matter. The lack of clarity in this area of law has been used to attempt to veil findings of sexual harassment and to protect the identities of abusers even after they have been found to have committed harassment. This, presumably, is not the intention of the law although one can’t be sure.

As such, even where there is law, there is uncertainty. And, where law is scant, the uncertainty only rises. The most glaring example of this is probably demonstrated by the intrusive and explicit reportage of sexual violence that is sometimes ostensibly used to raise awareness about violence. Although the publication of obscene content is legally prohibited and privacy is a constitutional right, reportage could easily be gratuitously intrusive without reaching the level of incontrovertible illegality. There is no reason to believe that such reportage is justifiable particularly since it does not appear to help ensure that perpetrators are held accountable at law. Still, it continues.

Caste and class privileges

In addition, there are significant differences in how rape reportage is conducted depending on the caste and class of those involved. Women who are upper caste or upper class are generally not portrayed in disarray. Those who are not privileged are wont to have images of their corpses hanging from trees or sinking in mud be disseminated without a second thought and without so much as having their identities blurred. When it comes to alleged perpetrators too, one is far more likely to see in-depth profiles of lower caste and lower class men men accused of sexual violence than of privileged men.

There is reason to suggest that the identities of all alleged perpetrators should be protected until the first formal finding of their guilt. Doing so would protect those who are accused without any basis. However, what cannot be gainsaid is that experience indicates that disclosing the identities of alleged perpetrators may well convince others whom they’ve abused to come forward with public (and, possibly, formal) allegations.

Some common problems with rape reportage are easily corrected. The oft-repeated claim that “medical reports (dis)prove rape” is a canard in relation to competent adult women, for example, simply because rape hinges on consent which a medical report cannot speak to. As such, medical reports are nothing but corroborative evidence that cannot either prove or disprove rape by themselves. Addressing the issue would take nothing more than purging the phrase “medical reports (dis)prove rape” from the vocabulary of rape reportage.

In most cases, however, clear-cut answers to questions about how to report sexual violence are often hard to come by. The law could be considered to prescribe minimum standards which attempt to protect those who have been subjected to sexual violence. The law alone, however, isn’t enough. Framing reportage in a manner which does not retraumatise victims, and which holds perpetrators to account requires one to go above and beyond the letter of the law.

Nandita Saikia is a media and technology lawyer in Delhi.