Indian courts tend to treat cases of online violence towards women as less severe than physical violence due to the misconception that online space is less real or tangible than the physical world, a recent study on online gender-based violence (OGBV) by NGO IT for Change has found.
Pointing out the flaw in treating the online and offline space as separate, the study pointed out that both worlds “are connected and actions online can lead to real harm and vice versa”. It also pointed out that correlations between offline abuse and OGBV had been documented through multiple studies.
“Often, online harms result in offline offences. In many cases where the accused is charged with committing both online and offline offences, courts tend to focus more on the offline offences,” the study noted, calling the online-offline world a continuum where the online world exacerbates and replicates the preexisting offline hierarchical structures.
Published in November, the study – titled ‘The Judiciary’s Tryst with Online Gender-Based Violence: An Empirical Analysis of Indian Cases and Prevalent Judicial Attitudes’ – by authors Malavika Rajkumar and Shreeja Sen also found that courts were biased against women survivors of OBGV.
The study pointed out the proliferation of various archaic and biased laws which focus on “outraging the modesty of a woman”, which it said, supports traditional ideas about women in the courtroom. It was also observed that courts often aim to “protect” women’s honour from offensive comments online – an old-fashioned approach that ends up limiting women’s independence and freedom.
The study highlighted that in bail orders, the focus of the courts was often on the woman’s ‘character’ rather than on the offence committed by the accused.
In the 94 cases analysed, the study found that the biggest hindrance in tackling online violence was that it was considered less serious or “less real” than offline crimes. It was observed that in many cases, threats to publish intimate content online coerced women to engage in non-consensual sexual activities in person.
The study pointed out that a major reason that the judiciary does not recognise online gender-based hate speech is that the concept does not have statutory recognition.
Over 70 per cent of the 94 cases studied were of non-consensual intimate image distribution (NCIID). The study noted that while hearing these cases, courts delved into the patriarchal concepts of ‘morality’ and ‘modesty’.
In a few instances, it was observed that the court rejected the cases at a preliminary level because of digital certification requirements. In others, digital evidence was not considered altogether.
The study found patriarchal patterns in the courts’ observations even while hearing bail cases. While granting bail to the two accused aged 21 and 23 respectively, the court held that they were “young boys”.
“Courtrooms continue to be sexist and patriarchal spaces for survivors of OGBV cases, thereby perpetuating common judicial stereotypes and impacting access to justice,” the study pointed out.
Stereotypes, such as, rape by a stranger is more traumatic than rape by an acquaintance, ‘genuine rape’ victims report the incident to authorities without delay, survivors of rape are visibly emotional when recounting their experience and women frequently make false allegations of rape were also noted in various court orders. The study observed that these sexist stereotypes continue to prevail both in online and offline cases.
The study also pointed out that courts often failed to recognize power differentials between the perpetrators and survivors in OGBV cases.
Along with problems, the study also provided some solutions. It said that “courts must recognise the importance of the online public sphere and give equal importance to online gendered offences”.
Among other solutions were reforming institutional processes and procedures, and avoiding procedural hurdles, including digital evidence certification, that impede proper justice delivery. It also noted that courts must “identify challenges in holding digital platforms accountable for profitable viral content”.