भारत के आपराधिक न्याय में द्वितीयक पीड़न: न्याय की राह में फिर‑से आघात

Secondary Victimisation In India's Criminal Justice System

Ann Maria Joseph

26 Sept 2026 3:00 PM IST

A rape survivor in India who decides to report the crime goes through a Herculean situation. She goes through at least four: the assault itself, the police station, the medical examination, and the trial. Each later stage is supposed to be a step toward justice. In practice, each one can hurt her all over again. This is what criminologists call “secondary victimisation”: the re-traumatisation of a survivor by the very institutions meant to help her, distinct from the harm inflicted by the original crime. It is not India's criminal justice problem. It is one of its central, structural, social conditions that deserves to be treated as early as possible.

How trauma actually behaves

Survivors of sexual assault often cannot give police or a court a smooth, chronological account of what happened to them. Trauma disrupts how memory is stored and retrieved, so a survivor's account is, quite predictably, more likely to be fragmented and inconsistent on small details than a rehearsed story would be. A word-perfect narrative should be the one that raises an eyebrow, not the other way around. Many survivors don't fight back during an assault. Police and defence lawyers routinely treat this as proof of consent. It is nothing of the sort. A well-documented, involuntary freeze response, “tonic immobility”, kicks in for a substantial share of victims confronting overwhelming threat. It isn't a choice, and willpower can't switch it off.

Survivors of domestic violence frequently return to abusers who have hurt them, and courts have used this to question their credibility. But the pattern is clinically explained: an abuser's contrition and affection in the aftermath of violence can genuinely, if temporarily, override a survivor's rational assessment of danger. That's not evidence she was lying about the abuse. It's evidence of exactly the trap the abuse creates. And prolonged abuse leaves a lasting mark that the legal system is not built to see at all. Survivors of sustained intimate-partner violence often develop a recognised clinical syndrome: shame, a persistent sense of being permanently damaged, difficulty trusting people, physical symptoms that outlast the relationship itself. Survivors of domestic violence are often pulled back from filing a case against their partner, as family members are often trying to hide this issue as a “family issue”. Even if a survivor moves on to file a case, then the officials or superiors who need to protect her tell her to go for mediation or “give a second chance”. The criminal process treats violence as a single event to be proved or disproved on one day in court. It has no real answer for the years of health consequences that follow.

A legal system that already knows better

Here's what makes all this so frustrating: Indian courts have said, repeatedly and for decades, that survivors shouldn't be judged this way. The Supreme Court has held since the 1980s that a rape survivor's testimony needs no corroboration. It has held that failing to raise an immediate alarm doesn't make her less credible. It has held that continuing to live with an abuser doesn't undercut a complaint. It banned the discredited “two-finger test”, a medical exam once used to assess a survivor's “habituation to intercourse” as a violation of her constitutional dignity, back in 2013. None of this is new law. And yet police stations, hospitals, and courtrooms keep reproducing exactly the assumptions the Supreme Court has told them to abandon. That gap between what the highest court says and what happens on an ordinary Tuesday in a Sessions Court is not a gap in the law. It's a gap in institutional culture.

The “ideal victim” problem

Part of the explanation is a mental template that criminologists call the “ideal victim”: weak, respectable, attacked by a stranger, reporting immediately, visibly and consistently distressed. Any survivor who deviates from this script and in India, the overwhelming majority of sexual violence is committed by someone the survivor knows, not a stranger loses credibility at every single stage of the process. This isn't speculation. One empirical study of over 500 Delhi rape judgments, delivered after the post-2012 legal reforms that were specifically meant to fix this, found that three in four acquittals rested on doubts about the survivor's character, her relationship with the accused, or her failure to match the ideal-victim image. More than a third of the judgments in that study used reasoning the law explicitly prohibits.

The naming of the survivor of the 2012 Delhi gang rape as “Nirbhaya”, fearless, captures the same dynamic from a different angle. It was, in one sense, a respectful gesture that gave a national reform movement its symbolic centre. It also, without anyone quite intending it, set an unspoken bar: young, blameless, attacked by strangers, publicly mourned. Survivors whose circumstances don't fit that mould who knew their attacker, who didn't report immediately, who don't fit anyone's idea of a sympathetic victim get less public attention, less media pressure on the system, and, not coincidentally, less institutional urgency. Courtrooms and newsrooms end up reinforcing the same story about who deserves belief.

Where it happens

Secondary victimisation isn't confined to one moment. It recurs at every stage.

At the police station, survivors are pushed toward informal “mediation,” their complaints are recorded as lesser offences, or they're told to bring witnesses before an FIR is even registered; each of which tells her, before the case has even begun, that her word isn't enough. Survivors are pulled back to take down the case in a way to protect her “dignity”.

During the medical exam, banned procedures still surface years after being outlawed, with no real consequence for the doctors who perform them. Even a medical practitioner behaves so rudely towards a survivor that it not only humiliates her dignity but also breaks her down mentally.

During trial, a survivor may be cross-examined about her clothing, her past relationships, and her general character in the physical presence of the man she has accused, despite a law that says none of this is relevant to consent.

In bail hearings, courts have imposed conditions that would be laughable if they weren't so damaging, including, in one infamous case, ordering an accused to have a symbolic thread tied on his wrist by the survivor as a condition of release. The Supreme Court struck that down and laid out clear rules for survivor-centred bail. Years later, monitoring reports still find inconsistent compliance, and survivors are never even told when their attacker has been released.

What it would take to fix this

The positive development, if such can be regarded as one, is that India does not require the introduction of new doctrines. Instead, it needs the strict enforcement of existing doctrines. This entails comprehensive, targeted training for law enforcement officers, medical practitioners, and judicial officials on the true manifestation of trauma, rather than merely generic sensitisation workshops. It also involves establishing personal accountability for officers who neglect to register an FIR, medical practitioners who conduct prohibited tests, or judges whose bail orders disregard the guidelines set forth by the Supreme Court. Furthermore, it requires minimising the number of instances in which a survivor must recount her experience to strangers with hostile attitudes. Lastly, it requires recognising that justice cannot be measured by a verdict alone, because a survivor's suffering may continue long after the trial has ended.

If that happens, the process meant to deliver justice to survivors of gender-based violence will keep functioning, for many of them, as one more thing that happened to them rather than the system that was supposed to make it right.

Author is an Advocate based in Delhi. Views are personal.

Powered by Nyaya 247 News