Trial And Error

The media must not play judge and jury in cases of sexual assault

The media’s recent stance of activism in high-profile cases of sexual assault are both cause and symptom of public revulsion. ADNAN ABIDI / REUTERS
01 February, 2014

DURING PRIME TIME ON THE NIGHT of 17 December 2013, the Hindi-language news channel India TV aired its investigation into a case of rape recently registered in Delhi. It broadcast an interview with a young woman who alleged that Khurshid Anwar, a 55-year-old social activist, had spiked her drinks during a party at his home one night in September, and raped her after she passed out. The morning after the interview was aired, Anwar’s body was discovered outside his home—he had jumped to his death. His friends and family told reporters that the India TV programme had been the last straw, pushing him over the brink.

When I asked journalists at India TV about their investigation, they told me they had abided by the rule book and interviewed all the key players in the case. But it was hard to miss a certain slant in the channel’s coverage: in a clear case of editorialisation, the news anchor Rajat Sharma had repeatedly announced that India TV would campaign against the man who had dishonoured the young woman (“Iske saath kukarm karne waale ko anjaam tak pahuchaye”), and battle to get her justice (“India TV ladega iss ladki ko insaaf dilaane ki jung”).

“This is not the first time the media has said it would campaign on behalf of a woman victim,” Abhishek Upadhyay, India TV’s editor for special projects and one of the channel’s two reporters on the case, told me. “Those condemning us were applauding when the media went after Tarun Tejpal, Justice Ganguly, Asaram Bapu ... In fact, those cases were reported even before a complaint had been filed with the police. It was the media reporting of those cases that led to the filing of the complaint.”

Part of the legacy of the December 2012 Delhi gang rape is a newly activist media, that is both a symptom and a cause of the increased public revulsion against such cases. Laudable as it may be, this media activism is also disquieting, and not just because it might partially be fuelled by a competitive rush to attract larger audiences. Even when well intentioned, recent coverage of sexual violence has tended to degenerate rapidly into a series of trials by media, with the media arrogating to itself and the public the powers of both judge and jury. As a consequence, the media has chipped away at the already precarious agency of assault victims, and also undermined the possibility of justice being delivered.

This may seem counter-intuitive, given that public revulsion has motivated a significant increase in the reporting and investigation of sexual assault in the last year. Even the conservative media in the country’s Hindi heartland did not shy away from reporting the allegations of sexual assault against the influential god-man Asaram Bapu, who, since August last year, has been accused of preying on several female devotees, including some minors. Asaram did not escape scrutiny and arrest despite his connections with powerful politicians. In November, the Times of India drew attention to a blog on which a legal intern claimed to have been sexually harassed by an unnamed former Supreme Court judge. The papers’s report was seen by the Chief Justice of the Supreme Court, who started an enquiry that, in December, named AK Ganguly as the alleged offender. In the ensuing furore, Ganguly eventually resigned from his position as the head of West Bengal’s human rights commission. Also in November, Tarun Tejpal, then the editor of the news magazine Tehelka, offered to “recuse” himself for six months over a “bad lapse of judgement” that, allegedly, involved sexual harassment of a female colleague. The media pursued the story so relentlessly that the police acted considerably faster than usual to investigate the case. Tejpal was arrested on rape charges in early December, and has been behind bars since.

In each of these cases, what began as an asymmetrical fight—with the men immeasurably more powerful than the women—became a more equal battle after the media decided to back the women making the allegations. But while this might have encouraged some women with similar allegations to speak out, the subsequent fallouts might have deterred others.

Complications arose from the manner in which these events were covered. Take, for instance, the Tehelka case, in which the female journalist’s private complaint to the magazine’s management was leaked and quickly posted on news websites in full detail. Having heard from her friends that she was distressed at this violation of her privacy, I joined a group of concerned journalists and researchers in writing an urgent appeal to the media to ask that a woman’s consent be sought before publishing identifying or explicit details of an alleged sexual assault. (Disclosure: A Caravan editor was part of this group.)

Long discussions followed, online and elsewhere, which revealed something of our collective confusion as journalists as we tried to reconcile seemingly conflicting imperatives while reporting on sexual assault. Was it possible, for instance, to expose the perpetrators of sexual violence without infringing upon a victim’s wishes, or upon journalistic injunctions against bias? Should the media privilege a victim’s right to privacy over the need to inform the public of all available facts? Would measured restraint keep the horrors of sexual violence hidden from public view?

To further expand the debate, the group that circulated the appeal started a blog, where we asked editors to weigh in on these questions. N Ravi, the editor of The Hindu, maintained that readers could be informed of “the nature and seriousness of the allegations in as much detail as possible not just without violating the law but also without intruding into the privacy of the victim.” Sonia Singh of the news channel NDTV said that violations of privacy by the media could create even more silence around sexual assault, since women “just [wouldn’t] come out and complain” if it seemed that their complaint might indiscriminately be made public.

As the discussion progressed, we realised that it may be impossible to lay down a charter of media ethics that would apply universally to all reporting on sexual violence, since incidents range from assaults committed in the intimacy of the home to mass crimes during riots and genocides. But, in most cases, it seemed the ethical consideration of a woman’s privacy aligned, rather than conflicted, with the professional obligation to report freely and fairly, and even with the larger social battle to ensure justice for victims of sexual assault.

Reporters are trained to see details as an unmitigated good: the greater the density of detail, the better the report. But in cases of sexual violence, the journalistic challenge lies not in the simple accumulation of details, but in their careful selection. A news report that relays only the essential details of an alleged assault might make for less riveting copy, but it is also less likely to impinge on the privacy of a victim or unfairly denounce an alleged assailant.

There may well be exceptions to this. For instance, in cases where the police have failed to act or there has been a miscarriage of justice, it might become incumbent on the media to delve into greater detail. But the truth is that restraint in reporting does not amount to a conspiracy of silence. Editors are right to withhold the explicit details of sexual assaults even as they give prominence to the allegations and subsequent prosecution of such crimes. If their larger project is to raise public awareness about sexual violence, they might accomplish more by presenting narratives of proven crimes rather than sensitive details of cases still under investigation or trial.

Sobriety in news reporting can serve the cause of justice. In a post on the blog, which I helped start, Mrinal Satish, professor at the National Law University, Delhi, explained how a “verbatim reproduction” in the press of a woman’s initial account of an assault could harm her case in court. Defence lawyers can compare such accounts, often related while still in a state of shock or distress, against later testimony deposed in court to look for inconsistencies or contradictions that can weaken a case. Trials by media, Satish maintained, adversely affect judicial processes and can result in outcomes that are unfair to both the accused and the accuser.

But such academic perspectives, valuable as they are, can be difficult to apply to the unruly task of reporting. As events in the last year have indicated, trials by media in India are inextricably linked with the fact that our institutions have shocking weaknesses. When the recent cases of sexual assault came to light, it was not only Tehelka, a magazine known for its strident advocacy of women’s rights, that was found to be lacking an institutional mechanism to address sexual harassment—so was the highest court in India, the custodian of those rights.

Had such a mechanism existed in the Supreme Court, AK Ganguly might not have been subjected to his trial by media. After the Chief Justice’s committee found that the intern’s testimony prima facie disclosed “an act of unwelcome behaviour” on the former judge’s part, Ganguly and his associates tried to rebut the findings by alleging that he was being framed by “powerful interests”. To counter his narrative, Additional Solicitor General Indira Jaising, with the intern’s consent, published excerpts from her affidavit in the Indian Express, which outlined the alleged assault in considerable detail.

The release of those details led to media demands for a criminal investigation, prompting the police to contact the intern. In response to the pressure on her to file a police complaint, the intern told the media, “I request that it be acknowledged that I have the discernment to pursue appropriate proceedings at appropriate times. I ask that my autonomy be respected fully.”

In times so fraught, the media, while fighting for justice on anyone’s behalf, must be careful not to force upon them consequences which they alone must live with. Nor should it lose sight of the basic, if difficult, task of withholding judgement while reporting the news. We must take note that we now face the prospect of judicial restrictions on reporting. In early January, some media outlets reported another case of a law intern writing to the Chief Justice alleging sexual harassment by a former Supreme Court judge. The former judge’s lawyers convinced the court that letting the media report the case would result in “trial by the media”, which would impair “his likelihood of getting [a] fair trial”. The court has temporarily restricted further reporting of the case. It would be hard to maintain that recent trends in reporting had not informed the court’s view.

Fourteen months after the December 2012 gang rape, the incremental victories that women have wrested from a misogynist society have begun to look fragile, and conversations that had become sympathetic to them are turning more ambiguous, and even antagonistic. On 8 January 2013, the Hindustan Times reported that parliament would set aside two days of time previously allocated to approving the national budget to discuss amendments to the country’s anti-rape laws. But one year later, on 8 January 2014, the paper reported that airline pilots had barred female stewardesses from entering cockpits, fearing both false and motivated charges of sexual harassment. In December 2012, we were debating whether to call the young woman who was raped a “victim” or a “survivor”. In the recent high-profile cases, we might have done better to stick to the more neutral “complainant”. That would have amounted not to unfairly doubting the testimony of the women who came forward, but to rightly doubting the media’s ability to be a court of law.