Culture, tradition under scrutiny in sex assault trial
If you came from a culture where divorce carries a significant stigma, how far would you go to save your reputation, especially if it’s your second divorce?
Would you go so far as to lie about being abused? About being raped? About being starved?
Lawyer George Tsimiklis seemed to be making the suggestion at the Superior Court of Justice in Toronto Monday that a woman who had entered into an arranged marriage had concocted a story of being abused and tortured and starved in order to escape the marriage without stigma of divorce.
Tsimiklis was cross-examining the woman we’re calling Sakhi, as her real name is under a publication ban.
Sakhi’s husband, Rajinder Gupta, has pleaded not guilty to multiple charges of sexual assault, assault and uttering threats in the judge-alone trial before Superior Court Justice James Diamond that began last week. Gupta’s mother, Sheela Gupta, has pleaded not guilty to assault and uttering threats and father Vinod pleaded not guilty to a single count of uttering a threat. Sakhi last week testified in Punjabi, through an interpreter, that her husband slapped, bit, choked, sexually assaulted and threatened her during their three-month marriage. Crown attorney Kelly Simpson showed the court 15 photographs taken at Trillium Health Centre of bite marks and bruises over Sakhi’s body.
“According to rules of your Hindu traditions,” Tsimiklis said, “there are two honourable ways to leave marriage: One, if your marriage was not consummated. Two, if your whole family subjected you to conditions such that you had no choice (to leave) despite making every effort to make the marriage work.”
Here is the thing about Hinduism. There are no hard and fast rules. Traditions constantly evolve based on local cultures. So when Tsimiklis sounded out those rules, I rushed to Google them. No luck. I messaged friends: they hadn’t heard of this get-out-of-marriage-free card. I looked up India’s Hindu Marriage Act. It lists multiple reasons for divorce, not just two. I asked Tsimiklis who referred me to an assistant who said he would give me the source of that knowledge Tuesday.
Perhaps Tsimiklis was trying to establish a cultural framework around acceptance of divorce rather than a religious one.
Cross-examination at a sexual assault trial is at the heart of the tensions between the judicial system and the #MeToo movement. How do you prove a woman is lying without appearing to rely on the “lying woman” trope?
For minority women, their culture and traditions provide an alternative access point to motives. All day Monday, Tsimiklis touched upon themes of shame and honour and expectations of maintaining Hindu traditions as he attempted to poke holes in Sakhi’s testimony. Except, the fluidity of Hindu traditions means many of these rules or expectations cannot be applied universally. Which might be why the cross-examination went something like this:
Tsimiklis: “In Hindu tradition, even with a ceremony you are not considered married until you have sexual relations with each other?”
Sakhi: “I have not heard of that. I’m not aware that it’s not considered a marriage.”
Tsimiklis: “In Hindu culture there are only two ways to get divorced and maintain your honour.”
Sakhi: “What do you mean by maintain your honour?”
Tsimiklis changed tack to try to establish that she had already used up one of those two rules before: “You were married once before. But in that marriage is it your evidence that the marriage was never consummated?” “Yes.” “You’re aware that your parents told Rajinder Gupta’s parents that despite being married you had never consummated that marriage?” “Yes.” “You would agree if you had consummated your first marriage and divorced that you would not be desirable to Rajinder Gupta’s parents?”
“They would know whether I was good for them. Because in either case I would have advised them.”
Tsimiklis persistently made the point Sakhi hadn’t told her parents about being sexually or physically assaulted (implicit that it was because it didn’t happen) to which Sakhi said she hadn’t had the opportunity as Gupta was always around and also, she didn’t want to tell them everything.
Tsimiklis said all the discussions between the two families were about her behaviour, about her cooking abilities, about her difficulties with Gupta and how his parents spoke to her. None of these met the standards of the second “rule” he mentioned. “These meetings were about problems that would not justify a divorce,” he said.
She wasn’t restricted from eating, he said. “Is it not true that you didn’t like their food and were not permitted to make another meal as they were on a budget?” “No.” “They said go ahead and eat (the one already prepared)?” “No.” It was toward the end of the day that Tsimiklis found some inconsistency to Sakhi’s testimony. When he asked whether on the day she alleged Gupta inserted four fingers in her vagina if any other violations took place, she said she didn’t remember. “Last week you remembered?” he asked, referring to her testimony that intercourse took place.
Cross-examination continues today.